Rule2026-20016
U.S. Citizenship and Immigration Services Employment-Based Immigrant Visa, Fifth Preference (EB-5) Fee Rule
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 30, 2026
Effective
November 30, 2026
Issuing agencies
Homeland Security Department
Abstract
This final rule adjusts the Employment-Based Immigration, Fifth Preference (EB-5) immigration benefit request fees charged by U.S. Citizenship and Immigration Services (USCIS). It also codifies provisions of the EB-5 Reform and Integrity Act of 2022, implements new statutory requirements, and addresses public comments received on the proposed fee rule published on October 23, 2025.
Full Text
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<title>Federal Register, Volume 91 Issue 188 (Wednesday, September 30, 2026)</title>
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[Federal Register Volume 91, Number 188 (Wednesday, September 30, 2026)]
[Rules and Regulations]
[Pages 61940-61985]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-20016]
[[Page 61939]]
Vol. 91
Wednesday,
No. 188
September 30, 2026
Part II
Department of Homeland Security
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8 CFR Parts 106 and 216
U.S. Citizenship and Immigration Services Employment-Based Immigrant
Visa, Fifth Preference (EB-5) Fee Rule; Final Rule
Federal Register / Vol. 91, No. 188 / Wednesday, September 30, 2026 /
Rules and Regulations
[[Page 61940]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 106 and 216
[CIS No. 2846-26; DHS Docket No. USCIS-2025-0139]
RIN 1615-AC93
U.S. Citizenship and Immigration Services Employment-Based
Immigrant Visa, Fifth Preference (EB-5) Fee Rule
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule.
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SUMMARY: This final rule adjusts the Employment-Based Immigration,
Fifth Preference (EB-5) immigration benefit request fees charged by
U.S. Citizenship and Immigration Services (USCIS). It also codifies
provisions of the EB-5 Reform and Integrity Act of 2022, implements new
statutory requirements, and addresses public comments received on the
proposed fee rule published on October 23, 2025.
DATES: This final rule is effective November 30, 2026. Any application,
petition, or request postmarked on or after this date must be
accompanied by the fees established by this final rule.
FOR FURTHER INFORMATION CONTACT: Office of the Chief Financial Officer,
U.S. Citizenship and Immigration Services (USCIS), Department of
Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746;
telephone (240) 721-3000. Individuals with hearing or speech
impairments may access the telephone number above via TTY by calling
the toll-free Federal Information Relay Service at 711.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Changes from the Proposed Rule
D. Summary of Final Fees
E. Summary of Costs and Benefits
II. Background
A. The EB-5 Program
B. USCIS Fees
C. Status of Previous EB-5 Fee Regulations
D. Related Rulemakings and Policies
E. Severability
III. Changes from the Proposed Rule
A. Change in Current Fees
B. Revised IEFA Fees
C. Revisions to the EB-5 Fee Study
D. Revised EB-5 Technology Fee
E. Change to Inflation Adjustment to EB-5 Integrity Fund Fees
IV. Response to Public Comments on the Proposed Rule
A. Summary of Comments on the Proposed Rule
B. General Feedback on the Rule
C. Background and Legal Authority
D. Fee Setting Approach
E. Proposed Form or Fee Changes
F. EB-5 Integrity Fund Fees and Penalties
G. Statutory and Regulatory Requirements
H. Out of Scope Comments
V. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review),
and Executive Order 14192 (Unleashing Prosperity Through
Deregulation)
B. Regulatory Flexibility Act (RFA)
C. Unfunded Mandates Reform Act of 1995 (UMRA)
D. Congressional Review Act (CRA)
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Family Assessment
H. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments)
I. National Environmental Policy Act (NEPA)
J. Paperwork Reduction Act (PRA)
Table of Abbreviations
ABC Activity-Based Costing
AIIA American Immigrant Investor Alliance
AILA American Immigration Lawyers Association
APA Administrative Procedure Act
BLS Bureau of Labor Statistics
CEQ Council on Environmental Quality
CFR Code of Federal Regulations
CPI-U Consumer Price Index for All Urban Consumers
CRA Congressional Review Act
DHS Department of Homeland Security
DOL Department of Labor
EB-5 Employment-Based Immigration, Fifth Preference
E.O. Executive Order
FDNS Fraud Detection and National Security Directorate
FR Federal Register
FY Fiscal Year
IEFA Immigration Examinations Fee Account
IPO Immigrant Investor Program Office
JCE Job Creating Entity
NCE New Commercial Enterprise
NEPA National Environmental Policy Act
NPRM Notice of Proposed Rulemaking
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
TEA Targeted Employment Area
VPC Volume Projection Committee
UMRA Unfunded Mandates Reform Act
USCIS U.S. Citizenship and Immigration Services
I. Executive Summary
A. Purpose of the Regulatory Action
DHS is adjusting EB-5 immigration benefit request fees and
implementing related provisions of the EB-5 Reform and Integrity Act of
2022, div. BB of the Consolidated Appropriations Act, 2022, Public Law
117-103 (EB-5 Reform Act), to ensure adequate funding for program
administration, enhance integrity measures, and comply with statutory
requirements. This rule establishes an updated fee schedule, introduces
a technology fee, codifies Integrity Fund fees and penalties, and
clarifies procedures for certain EB-5 filings.
B. Legal Authority
DHS is publishing this rule under the authority of the EB-5 Reform
Act. The EB-5 Reform Act repealed prior statutory provisions for the
Regional Center Program (Pub. L. 102-395, 106 Stat. 1828, sec. 610) and
amended the Immigration and Nationality Act (INA) to reform the
regional center program of the EB-5 category, effective May 14, 2022,
through September 30, 2027.\1\
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\1\ This rule and its supporting analysis assume that the
program will be extended and will not sunset on this date, as
Congress has a history of reauthorizing the program when it is set
to end. See, e.g., Public Law 112-176, 126 Stat. 1325.
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The EB-5 Reform Act authorizes DHS to conduct a fee study and set
fees for EB-5 program-related immigration benefit requests.\2\ Under
section 106 of the EB-5 Reform Act, DHS is establishing the fees in
this rule to recover the full costs of administering the EB-5 program
and seek to attain statutory processing time goals. See Public Law 117-
103, div. BB, sec. 106(b).
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\2\ Although the deadline provided in section 106(b) for
promulgation of the regulations has passed, the Supreme Court has
repeatedly held that ``if a statute does not specify a consequence
for noncompliance with statutory timing provisions''--which the EB-5
Reform Act does not--the agency is not deprived of its power to act.
Barnhart v. Peabody Coal Co., 537 U.S. 149, 159 (2003) (quoting
United States v. James Daniel Good Real Prop., 510 U.S. 43, 63
(1993)).
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The EB-5 Reform Act also authorizes DHS to include costs for
reduced or no-fee applications and up to one percent of the petition
fee for technology improvements. See Public Law 117-103, div. BB, sec.
106(c).
The EB-5 Reform Act further requires DHS to collect EB-5 Integrity
Fund fees (INA sec. 203(b)(5)(J), 8 U.S.C. 1153(b)(5)(J)), including
annual fees from regional centers and penalties for late or nonpayment.
C. Changes From the Proposed Rule
As explained more fully in section III and later in this preamble,
DHS is making several changes in this final rule based on comments
received on the proposed rule or in exercising its authority to
establish fees while balancing policy objectives as supported by data.
The main changes are as follows:
[[Page 61941]]
1. Change in Current Fees
On November 12, 2025, the United States District Court for the
District of Colorado issued a decision in Moody v. Noem, 2025 WL
3157554 (D. Colo.), staying certain EB-5 related fees that were
codified by DHS and became effective April 1, 2024.\3\ The court
determined that the EB-5 Reform Act precluded DHS from adjusting EB-5
program fees in the FY 2022/2023 fee rule. Moody at 10. DHS and USCIS
believe the Court's decision is incorrect but have implemented it. On
November 12, 2025, USCIS reverted to accepting the EB-5 fees that were
in effect until March 31, 2024. As such, the current fees shown in this
preamble are the fees which were in effect before the FY 2022/2023 fee
rule instead of the current fees listed in the proposed rule and those
codified at 8 CFR 106.2(a).\4\
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\3\ See U.S. Citizenship and Immigration Services Fee Schedule
and Changes to Certain Other Immigration Benefit Request
Requirements, 89 FR 6194, 6169, 6209 (Jan. 31, 2024) (FY 2022/2023
fee rule).
\4\ See U.S. Citizenship and Immigration Services Employment-
Based Immigrant Visa, Fifth Preference (EB-5) Fee Rule, 90 FR 48516,
48517 (Oct. 23, 2025).
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2. Revised Fees
DHS proposed a range of Immigration Examinations Fee Account (IEFA)
fees from $55 to $29,935 in the proposed rule. In this final rule, DHS
sets revised fees to respond to comments and incorporate current data.
Table 1 later in this preamble compares current, proposed, and final
fees. As explained later in this preamble, the revised fees are mainly
the result of changes to budget and workload assumptions. We revised
budget and workload estimates to use more recent planning information
in response to comments.
3. Revisions to the EB-5 Fee Study
In this final rule, DHS updates the EB-5 fee study to incorporate
FY 2026/2027 projections and to reflect public comments, replacing the
FY 2024/2025 assumptions used in the proposed rule. See 90 FR 48516,
48522-48526. A more detailed discussion of the changes highlighted
below is provided in section III.C of this preamble.
<bullet> Receipt forecasts for EB-5 filings have been revised using
FY 2026/2027 estimates from the Volume Projection Committee (VPC),
increasing projected average annual EB-5 receipts from 11,262 to
16,604. Completion rate estimates have also been updated using more
recent Immigrant Investor Program Office (IPO) data, while remaining
aligned with the processing time goals in the EB-5 Reform Act.
<bullet> Regarding costs, the prior IEFA non-premium annual average
cost projection of $5.316 billion for FY 2024/2025 is replaced with an
updated FY 2026/2027 cost projection of approximately $6.960 billion.
In the proposed rule, EB-5 program-specific costs were approximately
$86 million. In this final rule, the revised EB-5 program-specific
costs are about $105 million.
<bullet> Using current EB-5 fees and the updated assumptions,
projected EB-5 revenue is approximately $56.6 million, resulting in a
cost-revenue gap of roughly $48.4 million. The final EB-5 fee schedule,
consistent with the proposed rule, is designed to close this gap and
align revenue with projected costs, consistent with INA sec. 286(m), 8
U.S.C. 1356(m), and the EB-5 Reform Act.
<bullet> The estimated cost of regional center terminations and
reaffirmations is also updated, and, in response to public comments,
those costs are now allocated only to initial Form I-956, Application
for Regional Center Designation, and Form I-956F, Application for
Approval of an Investment in a Commercial Enterprise, rather than to
Form I-956 amendments.
4. Change to Inflation Adjustment to EB-5 Integrity Fund Fees
DHS proposed to increase EB-5 Integrity Fund fees by the rate of
inflation using the Consumer Price Index for All Urban Consumers (CPI-
U) from the first half of 2022 to the first half of 2024 and noted that
the time period may change to reflect the current inflation at the time
the final rule is issued. See 90 FR 48516, 48531-48532. In this final
rule, DHS maintains an adjustment for inflation, as authorized by
statute, but changes the time period to reflect the CPI data from 2022
to 2025. As such, the resulting increase in this final rule is 10
percent. DHS thus increases the I-526E Integrity Fund fee from $1,000
to $1,100; the Regional Center fee from $10,000 to $11,000; and for
certain Regional Center the fee goes from $20,000 to $22,000.\5\ These
adjustments help ensure sufficient funding for program integrity
activities.
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\5\ See section III.E. of this preamble for additional
information. See also 8 U.S.C. 1153(b)(5)(J)(ii).
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D. Summary of Final Fees
Table 1 below summarizes the EB-5 program fees established by this
rule pursuant to the EB-5 Reform Act (Public Law 117-103, div. BB). The
Current Fee(s) column reflects the fees that DHS currently collects as
explained earlier in this executive summary and later in this
preamble.\6\ The Final Fee(s) column shows the new fees set by this
rule, with the last two columns displaying the dollar and percentage
differences. In some cases, the final fee includes an additional
technology fee, as authorized under section 106(c) of the EB-5 Reform
Act, to support improvements to USCIS information technology systems.
Other fees include the cost of regional center terminations and
reaffirmations, as explained later in this preamble. All adjusted fees
are incorporated into the revised Form G-1055, Fee Schedule, included
in the rulemaking docket.
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\6\ Please note that 8 CFR 106.2 reflects the EB-5 fees set in
the FY 2022/2023 fee rule. As such, the EB-5 fees in 8 CFR 106.2 do
not reflect the current fees USCIS collects, as explained earlier in
this executive summary and section III.A of this preamble.
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[GRAPHIC] [TIFF OMITTED] TR30SE26.020
E. Summary of Costs and Benefits
The fee schedule DHS finalizes will impact about 16,600 EB-5
program form filings annually and increase form fees by about 70.7
percent, or by about $2,945.90 (based on a weighted average) to
individual investors, regional centers, and other persons or businesses
involved in promoting program investments. DHS estimates that the 10-
year and annualized monetized costs will be about $8.06 million and
$0.81 million, in order, in undiscounted terms. At 3 and 7 percent
discount rates, in order, the ten-year (FY 2026 through FY 2035)
figures will be $6.88 million and $5.66 million. Impacts associated
with filing the new Form I-527, as well as a few expected Form I-829
filings from dependents separate from the principal filers, are
categorized as costs, as are changes in forms' time burdens. The final
fee changes (for EB-5 program forms that currently exist) will
constitute transfer payments from requestors to DHS, which are
estimated at $416.74 million and $343.14 million, over a 10-year period
at 3 and 7 percent discount rates, in order. Penalties and fees are
also classified as costs but are not estimated and quantified.
Based on limited data and information, DHS determined that most
regional centers and almost all New Commercial Enterprises (NCEs) and
Job-Creating Entities (JCEs) involved in program investment activity
will be small entities under the Regulatory Flexibility Act of 1980
(RFA).
II. Background
A. The EB-5 Program
Congress established the EB-5 program in 1990 to promote U.S.
economic growth through job creation and capital investment by
immigrant investors. Public Law 101-649, 104 Stat. 4978 (Nov. 29,
1990). The regional center program was added in 1992 (Pub. L. 102-395,
sect. 610, 106 Stat. 1828) and repealed in 2022. As amended by the EB-5
Reform Act, the program allocates approximately 10,000 visas annually
to qualified immigrants and dependents who invest at least $1,050,000,
or $800,000 in a targeted employment area (TEA) or infrastructure
project, in a U.S. business that creates at least 10 full-time jobs.
See INA sec. 203(b)(5)(A)-(C), 8 U.S.C. 1153(b)(5)(A)-(C). Up to 90
percent of job creation may be satisfied through indirect jobs in a new
commercial enterprise associated with a designated regional center. INA
sec. 203(b)(5)(E)(iv), 8 U.S.C. 1153(b)(5)(E)(iv).
USCIS administers the EB-5 program and maintains program integrity,
including through the IPO established in FY 2013. The EB-5 Reform Act
requires enhanced fraud, national security, and public safety measures,
such as site visits, background checks, and compliance audits. See INA
sec. 203(b)(5)(F)(iv), (H)(iii), (N)-(O), (R), 8 U.S.C.
1153(b)(5)(F)(iv), (H)(iii), (N)-(O), (R); INA sec. 103(a)(3), 8 U.S.C.
1103(a)(3); 8 CFR 103.2(b)(1). USCIS conducts investigations, site
visits, and audits to verify eligibility and supporting evidence.
Adverse findings may result in denial, revocation, or termination of
status.
The EB-5 Reform Act authorizes DHS to set fees to recover costs for
adjudication, program management, audits, and compliance activities.
See Public Law 117-103, div. BB, sec. 106(b), 106(c). These costs are
detailed in subsequent sections of this rule.
[[Page 61944]]
B. USCIS Fees
USCIS is primarily funded by fees charged to applicants,
petitioners, and requesters for immigration and naturalization benefit
requests. USCIS manages the following four fee accounts:
<bullet> The IEFA, which includes premium processing revenues (INA
secs. 286(m), (n), (t), and (u); 8 U.S.C. 1356(m), (n), (t), and (u));
<bullet> The Fraud Prevention and Detection Account (INA secs.
214(c)(12) and (13), 286(v); 8 U.S.C. 1184(c)(12) and (13), 1356(v));
<bullet> The H-1B Nonimmigrant Petitioner Account (INA secs.
214(c)(9) and (11), 286(s);8 U.S.C. 1184(c)(9) and (11), 1356(s)); and
<bullet> The EB-5 Integrity Fund (INA sec. 203(b)(5)(J), 8 U.S.C.
1153(b)(5)(J)).
When USCIS provides adjudication and naturalization services, it is
authorized to set IEFA fees at a level that will ensure recovery of the
full costs of providing all such services. See INA sec. 286(m), 8
U.S.C. 1356(m). The fees that are collected from individuals and
entities filing immigration benefit requests are deposited into the
IEFA. Id. These fees fund the cost of adjudicating immigration benefit
requests, including those provided without charge to refugee, asylum,
and certain other applicants or petitioners. The IEFA accounted for
approximately 95 percent of total funding for USCIS in the FY 2025
full-year budget.\7\ The EB-5 Integrity Fund represented less than 1
percent of FY 2025 funding. The remaining USCIS funding came from
appropriations (approximately 4 percent) or other fee accounts
(approximately 1 percent) in FY 2025. While premium processing funds
are also IEFA fees, this rule does not make premium processing fee
changes or consider premium processing costs or revenue as part of the
EB-5 fee setting approach described in the proposed rule. See 90 FR
48516, 48522-48530.
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\7\ See DHS, USCIS Budget Overview: FY 2026 Congressional
Justification, <a href="https://www.dhs.gov/sites/default/files/2025-06/25_0613_uscis_fy26-congressional-budget-justificatin.pdf">https://www.dhs.gov/sites/default/files/2025-06/25_0613_uscis_fy26-congressional-budget-justificatin.pdf</a>.
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The Fraud Prevention and Detection Account \8\ and H-1B
Nonimmigrant Petitioner Account \9\ are both funded by fees for which
the dollar amount is set by statute. DHS has no authority to adjust the
fees for these accounts. The EB-5 Integrity Fund, a new account
established in FY 2023, is discussed later in this preamble and in a
separate section of the proposed rule. See section III.C and IV.F of
this preamble; see also 90 FR 48516, 48530-48535l.
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\8\ The Fraud Prevention and Detection fees charged to certain
employers petitioning for nonimmigrant workers in the H-1B, H-2B,
and L-1 visa classifications are set by statute. Revenue is used for
activities related to preventing and detecting fraud in immigration
benefit requests. See 8 U.S.C. 1356(v)(2)(B) (``One-third of the
amounts deposited into the Fraud Prevention and Detection Account
shall remain available to the Secretary of Homeland Security until
expended for programs and activities to prevent and detect
immigration benefit fraud, including fraud with respect to petitions
filed under paragraph (1) or (2)(A) of section 1184(c) of this title
to grant an alien nonimmigrant status described in subparagraph (H)
or (L) of section 1101(a)(15) of this title.''). Revenue is shared
equally among USCIS, the U.S. Department of State, and the U.S.
Department of Labor (DOL). Effective July 25, 2018, USCIS also
collects and retains the $50 Commonwealth of the Northern Mariana
Islands fraud fee. See 48 U.S.C. 1806(a)(6)(A)(iv). DHS interprets
Fraud Prevention and Detection Account authority as providing
supplemental funding to cover activities related to fraud prevention
and detection and not prescribing that only those funds may be used
for that purpose. The Fraud Detection and National Security
Directorate (FDNS) is funded out of both the IEFA and the Fraud
Prevention and Detection Account. The fees deposited in the Fraud
Prevention and Detection Account are fixed by statute and are
insufficient to cover the full costs of FDNS. Therefore, USCIS uses
both Fraud Prevention and Detection Account and IEFA funds for FDNS
costs.
\9\ Certain H-1B fees are required by other laws. Revenue is
shared among USCIS, DOL, and the National Science Foundation. USCIS
receives 5 percent of these funds. USCIS uses the H-1B Nonimmigrant
Petitioner Account as supplemental funding for the limited H-1B
petition and petition for immigrant worker adjudication activities
authorized by statute. See 8 U.S.C. 1356(s)(5). The H-1B
Nonimmigrant Petitioner Account does not fully fund the H-1B program
at USCIS. As such, USCIS also uses IEFA fees to administer the
program. IEFA fees are not required for those limited purposes
authorized or required by sec. 1356(s)(5).
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Since its inception, the EB-5 program has been funded by fees set
by DHS under the IEFA authority. Historically, fees charged for USCIS
services are deposited into the IEFA are generally described as ``IEFA
fees.'' See, e.g., 89 FR 6194. The costs to provide such services,
which are generally used as the basis to develop the IEFA fees, are
described as ``IEFA costs.'' Id. A court ruling in 2025 reverted the
EB-5 fees to those set in 2016, as explained below.\10\
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\10\ For more information on the 2016 fee rule, see USCIS Fee
Schedule, 81 FR 73292 (Oct. 24, 2016).
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C. Status of Previous EB-5 Fee Regulations
In the FY 2022/2023 fee rule, DHS adjusted the USCIS fee schedule,
including EB-5 program fees, using a full cost recovery model based on
Activity-Based Costing (ABC) under INA section 286(m), 8 U.S.C.
1356(m), consistent with OMB Circular A-25. See 89 FR 6194 (Jan. 31,
2024); 88 FR 402, 418 (Jan. 4, 2023). That rule allocated IEFA costs
across benefit types and generally did not cap EB-5 fees below the
amounts indicated by the full cost recovery model. Because the EB-5-
specific fee study required by the EB-5 Reform Act had not yet been
completed, those EB-5 fees were not set using the statute's processing
time goals and narrower program-specific parameters. By contrast, the
EB-5 fees in this final rule are based on the EB-5 Reform Act
framework, its anticipated processing times, and a revised fee study.
On November 12, 2025, the United States District Court for the
District of Colorado issued a decision in Moody v. Noem, 2025 WL
3157554 (D. Colo.), staying certain EB-5-related fees established in
the FY 2022/2023 fee rule, which became effective April 1, 2024. See 89
FR 6194. The court concluded that the EB-5 Reform Act precluded DHS
from adjusting EB-5 program fees in that rule. Moody, at *10-11. As of
November 12, 2025, USCIS reverted to accepting the EB-5 fees that were
in effect until March 31, 2024.\11\
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\11\ See USCIS Newsroom, Court Order on Partial Stay of DHS 2024
USCIS Fee Rule, <a href="https://www.uscis.gov/newsroom/alerts/court-order-on-partial-stay-of-dhs-2024-uscis-fee-rule">https://www.uscis.gov/newsroom/alerts/court-order-on-partial-stay-of-dhs-2024-uscis-fee-rule</a> (Last Reviewed/Updated:
11/18/2025).
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D. Related Rulemakings and Policies
DHS is engaged in multiple immigration-related rulemakings that are
at various stages of development. DHS recognizes that policy and
regulatory changes can affect USCIS staffing needs, costs, fee revenue,
and processing times, including those for EB-5 workloads. Consistent
with prior practice, DHS has considered other relevant rules for
peripheral, overlapping, or interrelated effects on this EB-5 fee rule
and has analyzed, to the extent possible, the potential effects of
rules that may impact or substantively overlap with this action.
DHS has also considered, to the extent practicable, the effects on
this rule of intervening or anticipated legislation and policy changes
of which USCIS is aware. Immigration policy changes frequently, and
some initiatives may not be fully reflected in this rule due to the
time required for rule development and finalization. DHS therefore
cannot represent that it has accounted for every future policy change
at all levels of the U.S. Government that may directly or indirectly
affect the EB-5 program.
However, DHS believes it has examined and considered all relevant
aspects of the issues addressed by this rulemaking, responded to all
substantive public comments, and provided a reasoned explanation for
the EB-5 fee changes and related provisions consistent with applicable
statutory authorities, including the EB-5 Reform
[[Page 61945]]
Act. Where other DHS rules or major policy changes have a direct and
material effect on EB-5 fees, operations, or integrity measures, those
interactions are discussed in the relevant sections of this preamble.
1. EB-5 Reform and Integrity Act of 2022; Ensuring the Integrity of the
EB-5 Program; Automatic Revocation of Petitions for Immigrant
Classification
Separate from this EB-5 fee rule, on July 2, 2026, DHS proposed a
rule titled EB-5 Reform and Integrity Act of 2022; Ensuring the
Integrity of the EB-5 Program; Automatic Revocation of Petitions for
Immigrant Classification. See 91 FR 40676. This proposed rule would
implement the statutory reforms that the EB-5 Reform Act made to the
EB-5 visa category and the Regional Center Program. In general, under
the EB-5 program, aliens are eligible to apply for lawful permanent
resident status if they make the required investment in a new
commercial enterprise in the United States and create 10 permanent
full-time jobs for qualified U.S. workers. That separate rulemaking
proposes changes to improve the integrity of the program and clarify
eligibility requirements, whereas this rulemaking is limited to
establishing and adjusting EB-5-related fees and associated funding
mechanisms.
2. Collection and Use of Biometrics by U.S. Citizenship and Immigration
Services
On November 3, 2025, DHS proposed a separate rule to amend
regulations governing the collection and use of biometrics. See 90 FR
49062. That biometrics rule would, among other things, require
submission of biometrics by any individual, regardless of age, who
files or is associated with an immigration benefit request or other
covered request (unless exempted); expand biometrics collection
authority upon alien arrest; define ``biometrics;'' codify reuse
requirements; codify and expand DNA testing, use, and storage;
establish an ``extraordinary circumstances'' standard to excuse failure
to appear for a biometrics appointment; modify how certain applicants
demonstrate good moral character; and clarify the purposes for which
biometrics may be collected and used.
This biometrics rulemaking is distinct from, but operationally
related to, this EB-5 fee rule. To the extent biometrics policies
affect USCIS costs or processes, the effects of current biometrics
requirements are reflected in the underlying cost and workload
assumptions used in this fee rule, but the changes proposed in the
November 3, 2025, proposed rule are not considered, and biometrics
requirements themselves are not established or revised by this EB-5 fee
rule.
E. Severability
DHS believes that the provisions in this rule are severable and can
operate independently, consistent with the treatment of other USCIS
fees under current regulations. See 89 FR 6194, 6237-6238 (Jan. 31,
2024); see also 8 CFR 106.6. For example, the EB-5 Integrity Fund
penalty fees could be enjoined or stayed without affecting the validity
or operation of the EB-5 form fees or the technology fee. If DHS were
prohibited from collecting any particular fee established by this rule,
DHS believes that any stay, injunction, or vacatur could be narrowly
tailored to that specific fee or set of fees. In such circumstances,
USCIS could continue EB-5 operations--potentially at a reduced level or
with resource adjustments--while DHS undertakes additional rulemaking
to address the specific deficiency identified by a court. DHS further
believes that allowing the remaining fees to remain in effect would
avoid unnecessary disruption to the EB-5 program and would better
support Congress' objective of timely processing EB-5 petitions.
III. Changes From the Proposed Rule
This final rule adopts, with appropriate changes, the regulatory
text in the proposed rule published in the Federal Register on October
23, 2025.\12\ DHS is making several changes in this final rule based on
comments received on the proposed rule or as required by the effects of
those changes. For example, based on public comments, DHS updated data
and cost estimates to use more recent information which resulted in
different final fees than in the proposed rule.\13\ As explained
throughout this preamble, DHS exercises its discretionary authority to
establish fees. This final rule also relies on the justifications
articulated in the proposed rule, except as modified and explained
throughout this rule in response to public comments, intervening
developments, and new information. A description of each change is as
follows:
---------------------------------------------------------------------------
\12\ See U.S. Citizenship and Immigration Services Employment-
Based Immigrant Visa, Fifth Preference (EB-5) Fee Rule; Proposed
rule, 90 FR 48516 (Oct. 23, 2025) (proposed rule).
\13\ See section III.C of this preamble for more information.
---------------------------------------------------------------------------
A. Change in Current Fees
DHS is making changes to the proposed fees in this final rule. The
current fees shown in this preamble are different from the fees listed
in the proposed rule. See, e.g., 90 FR 48516, 48517. The current fees
are those from before the FY 2022/23 Fee Rule, as required by the
decision in Moody v. Noem, 2025 WL 3157554, (D. Colo.), that stayed
certain EB-5 related fees that were codified by DHS. See 89 FR 6194
(Jan. 31, 2024). On November 12, 2025, USCIS reverted to accepting the
EB-5 fees that were in effect until March 31, 2024.\14\ USCIS informed
the public that they would accept the previous fee for items postmarked
before November 26, 2025.\15\
---------------------------------------------------------------------------
\14\ See USCIS, Court Order on Partial Stay of DHS 2024 USCIS
Fee Rule, <a href="https://www.uscis.gov/newsroom/alerts/court-order-on-partial-stay-of-dhs-2024-uscis-fee-rule">https://www.uscis.gov/newsroom/alerts/court-order-on-partial-stay-of-dhs-2024-uscis-fee-rule</a> (last reviewed/updated Nov.
18, 2025).
\15\ Id.
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[[Page 61946]]
[GRAPHIC] [TIFF OMITTED] TR30SE26.021
B. Revised IEFA Fees
DHS proposed a range of IEFA fees from $55 to $29,935 in the
proposed rule. See, e.g., 90 FR 48516, 48517. In this final rule, DHS
sets revised fees in response to public comments, revisions to the EB-5
Fee Study, and updated data. See Table 1 earlier in section I.D. of
this preamble for a comparison of the current, proposed, and final
fees. The revised fees are mainly the result of changes to budget and
workload assumptions. We revised budget and workload estimates to use
more recent planning information in response to comments. Consistent
with the proposed rule, these fees will only recover the cost of the
EB-5 program and will not recover costs for other programs, which USCIS
fee rules typically refer to as cost reallocation. See, e.g., 90 FR
48516, 48525-48526.
C. Revisions to the EB-5 Fee Study
In the proposed rule, DHS relied on the results of an FY 2024/2025
fee review and the results of the EB-5 fee study to calculate the
proposed fees. In this final rule, DHS revises the EB-5 fee study and
its results to use more recent estimates from a FY 2026/2027 fee
review. Both versions of the EB-5 fee study use the same methodology,
but the revised EB-5 fee study uses newer data, as requested by
commenters.
1. Changes to Volume and Completion Rate Estimates
In the proposed rule, DHS explained the volumes and completion
rates that it used and how those affected the EB-5 fee study.\16\ For
example, USCIS estimates annual workload for using historical and
recent volume trends, statistical forecasts, and subject-matter
expertise from various USCIS offices. Completion rates reflect what is
termed ``touch time,'' or the time an employee with adjudicative
responsibilities handles the case.\17\ The workload and completion rate
estimates allow USCIS to determine staffing allocations, which affect
the USCIS budget and fees.
---------------------------------------------------------------------------
\16\ See 90 FR 48516, 48523-48526.
\17\ This rate does not reflect ``queue time,'' or time spent
waiting, for example, for additional evidence or supervisory
approval.
---------------------------------------------------------------------------
In response to comments, DHS revises the volume and completion rate
estimates to use FY 2026 and FY 2027 forecasts. Like the volumes in the
proposed rule, the volume estimates in this final rule were agreed upon
by the USCIS Volume Projection Committee (VPC). The mission of the VPC
is to facilitate workload and fee projection data, and coordination of
decisions about projected workload. This intra-agency group provides a
forum for decisions about projected workload with input from subject
matter experts from within USCIS and, in some cases, data from other
government agencies. The VPC predicts USCIS annual workload volumes
using historical and recent volume trends, statistical forecasts, and
subject-matter expertise from various USCIS directorates and program
offices, including the IPO, USCIS service centers, the National
Benefits Center, and regional, district, and field offices. USCIS
produced most of the estimates in this final rule during the meetings
in June 2025 to estimate the FY 2026 and beyond. These meetings were
the final time that the VPC produced comprehensive volume estimates for
FY 2026. USCIS uses VPC estimates to determine staffing levels, budget
for upcoming years, and estimate future revenue. While the VPC did not
forecast Form I-527 workload, USCIS relied on SME estimates for the
Form I-527 forecast required for this rule.
Workload volume is a key element used to determine the USCIS
resources needed to process EB-5 benefit requests on average within the
processing time goals established in the EB-5 Reform Act. EB-5 program
workload volume is the primary cost driver for assigning activity costs
to EB-5 immigration benefit requests. Table 3 displays the projected
average annual receipts for EB-5 immigration benefit requests in this
final rule:
[[Page 61947]]
[GRAPHIC] [TIFF OMITTED] TR30SE26.022
The total EB-5 workload in this final rule is higher than in the
proposed rule, but some forecasts are lower than in the proposed rule.
For example, USCIS anticipates fewer Form I-956 receipts in the
forecasts for this final rule than in the proposed rule. Generally, the
differences are because the final rule forecasts use more recent
information.\18\ See Table 4 below for the average annual receipt
forecasts in the final rule compared to the proposed rule forecasts.
---------------------------------------------------------------------------
\18\ See the Workload Volume Projections section and Appendix 3
of the revised EB-5 fee study for additional information.
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[[Page 61948]]
[GRAPHIC] [TIFF OMITTED] TR30SE26.023
As explained in the proposed rule, USCIS completion rates identify
the adjudicative time required to complete (render a decision on)
specific immigration benefit requests.\19\ The completion rate for each
benefit type represents an average and complex requests may require
more time, and others less. Completion rates reflect what is termed
``touch time,'' or the time an employee with adjudicative
responsibilities handles the case. This rate does not reflect ``queue
time,'' or time spent waiting, for example, for additional evidence or
supervisory approval. Completion rates do not reflect the total
processing time applicants, petitioners, and requestors can expect to
wait for a decision on their case after USCIS accepts it.
---------------------------------------------------------------------------
\19\ See 90 FR 48516, 48524-48525.
---------------------------------------------------------------------------
The completion rates for this EB-5 fee study are estimates
developed by USCIS' Office of Performance and Quality (OPQ), using
historical data and subject matter expert input from IPO. Most
completion rates in this final rule use information from the IPO
staffing allocation model for FY 2026. Most completion rates in the
proposed rule used older information. Some completion rate estimates
did not change in this final rule because they still represent the best
estimate for the workload. Some workloads do not use completion rates
to calculate the fees, as explained in the proposed rule.\20\ See Table
5 for a comparison of the completion rates used in the proposed and
final rules.
---------------------------------------------------------------------------
\20\ See 90 FR 48516, 48525 (e.g. ``For Forms I-956G, Regional
Center Annual Statement; I-956H, Bona Fides of Persons Involved with
Regional Center Program; and I-956K, Registration for Direct and
Third-Party Promoters, USCIS did not use completion rates in the
analysis of those immigration benefit request fees which results in
proposed fees that are lower than they would be if a completion rate
was used.'')
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[[Page 61949]]
[GRAPHIC] [TIFF OMITTED] TR30SE26.024
2. Changes to Cost Projections
In the proposed rule, DHS explained that the EB-5 fee study cost
projection was developed using overall IEFA non-premium costs in
addition to EB-5 program-specific costs, and that it accounted for
payroll and non-payroll for on-board and new staff, inflation, resource
adjustments, and the removal of temporary program costs, starting from
the FY 2024 Operating Plan. See 90 FR 48516, 48522-48524; Table 6
(summarizing the FY 2024/2025 annual average IEFA non-premium cost
projection of approximately $5,315.9 million), and 88 FR 402, 484-485
(Jan. 4, 2023); 89 FR 6194, 6277-6278 (Jan. 31, 2024) (biometric
services cost treatment). It used volume forecasts for FY 2024 and FY
2025. See 90 FR 48516, 48523-48524.
In this final rule, USCIS updates the IEFA non-premium costs,
program cost and workload projections to use the FY 2026/2027 biennial
period to respond to public comments and plan for future fiscal years.
These updated projections replace the proposed rule's FY 2024/2025 cost
estimates for purposes of the final EB-5 fee calculations and are
reflected in the economic analysis in this preamble. USCIS relied on
information from the recently completed FY 2026/2027 fee review and
made additional changes to account for new workloads, like Form I-527,
which were not part of the FY 2026/2027 fee review. Meaning, USCIS
copied the FY 2026/2027 fee review and made some changes to it, such as
adding data for Form I-527, to use in the Revised EB-5 Fee Study. The
revised IEFA nonpremium annual average cost projection for FY 2026/2027
is approximately $6,960.0 million, and the EB-5 program-specific cost
projection used in the fee model is approximately $105 million. To
arrive at this updated cost projection, USCIS started with its general
FY 2025 Operating Plan, which was slightly adjusted for some return to
workplace costs estimated for the remainder of the fiscal year. USCIS
then made the following adjustments in this review:
<bullet> Added staffing based on the FY 2026 and FY 2027 Staffing
Allocation Model (SAM) enhancements and a non-SAM enhancement request
for the Fraud Detection and National Security Directorate (FDNS), for a
total of 6,045 new positions across most USCIS offices by the end of FY
2027. The SAM enhancements incorporate the effect of recent Executive
Orders, as well as the most recent agency completion rate estimates.
The FDNS non-SAM enhancement of 167 positions in FY 2025 was approved
to start ramping up hiring in response to Executive Orders 14157 and
14161 \21\ with the overall goal to enhance USCIS' vetting and
screening capabilities and an average cost of $35.4 million per year.
The FDNS SAM includes 574 positions with an average cost of $93.8
million per year over the biennial period to continue the
implementation of those Executive Orders;
---------------------------------------------------------------------------
\21\ 90 FR 8439 (Jan. 29, 2025); 90 FR 8451 (Jan. 30, 2025).
---------------------------------------------------------------------------
<bullet> Accounted for pay inflation and promotions/within-grade
increases, which includes annual Federal employee pay and cost of
living adjustments. The assumed inflation rate was 3 percent for FY
2026 and FY 2027; and
<bullet> Considered net additional costs, such as the costs of
additional budget items. For example, USCIS added the cost of fully
taking over lockbox operations during the biennial period ($231.1
million), the cost associated with building and rent of new facilities
to accommodate additional staff ($278.1 million), the building of the
new National Records Center ($114.7 million), and the new Voter
Verification System ($75.3 million).
[[Page 61950]]
Table 6 is a summary from the starting point of the FY 2025 IEFA
non-premium annual operating plan to the FY 2026/2027 annual average
cost projection. The FY 2026/2027 annual average cost projection is
estimated to be $6,960 million.
[GRAPHIC] [TIFF OMITTED] TR30SE26.025
3. Changes to Revenue Projections
In the proposed rule, DHS explained that EB-5 revenue projections
were based on internal receipt forecasts developed and approved by the
VPC, which uses statistical modeling, historical receipt data, and
subject-matter input from relevant directorates to project form-level
volumes. See 90 FR 48516, 48524-48526. For EB-5 forms, USCIS assumed a
100-percent fee-paying rate because IEFA EB-5 fees are not subject to
fee waivers or exemptions, and estimated that current IEFA fees (as set
in the FY 2022/2023 fee rule) would generate an average of
approximately $4,192.3 million in annual IEFA non-premium revenue
during FY 2024/2025, including about $107.5 million from EB-5 forms.
See Table 7 of the proposed rule.
For this final rule, USCIS has updated the EB-5 revenue projections
in response to public comments, more recent planning data, and the
availability of updated receipt information. The revised projections
incorporate this new data, adjusted volume forecasts for FY 2026/2027,
and the final fee levels adopted in this rule. Using those estimates
and current fees, the estimated average annual EB-5 revenue is
approximately $56.6 million and total IEFA non-premium revenue of
approximately $5,561.1 million for FY 2026/2027. These revised revenue
estimates with current fees replace the proposed rule's FY 2024/2025
projections for purposes of the final fee analysis and are used,
together with the updated cost projections, to assess whether the final
EB-5 fee schedule is sufficient to recover projected program costs.
4. Changes to the Cost and Revenue Differential
In the proposed rule, DHS explained that the EB-5 fee study
compared projected EB-5 program costs to projected revenue under the
current fee schedule, assuming no fee changes, to determine whether
existing fees were sufficient to recover the full cost of providing EB-
5 adjudication services. If projected revenue was less than projected
costs, DHS would generally propose new or increased fees to address the
shortfall; if projected revenue exceeded costs, DHS could instead
reduce certain costs or services or draw down reserves. The proposed
rule summarized this relationship in Table 8 as the EB-5 cost-revenue
differential.
For this final rule, USCIS has revised both the cost and revenue
projections for the EB-5 program for FY 2026/2027, as described in the
preceding subsections. Using these updated projections, the EB-5 fee
study identifies an anticipated cost of $105.0 million and projected
revenue of $56.6 million under current fees, resulting in a cost-
revenue gap of $48.4 million. The final EB-5 fee schedule in this rule
is designed to close that gap and align EB-5 revenues with projected
program costs, consistent with INA section 286(m), 8 U.S.C. 1356(m),
and as required by the EB-5 Reform Act. The revised cost-revenue
differential is summarized in Table 7 of this preamble.
[[Page 61951]]
[GRAPHIC] [TIFF OMITTED] TR30SE26.026
5. Revisions to Regional Center Termination Costs
In the proposed rule, DHS explained that INA section 203(b)(5)(J),
8 U.S.C. 1153(b)(5)(J), requires DHS to terminate a regional center
that does not pay the EB-5 Integrity Fund fee, and that DHS may also
terminate a regional center for other forms of noncompliance. See,
e.g., INA 203(b)(5)(E)(vii)(III), 8 U.S.C. 1153(b)(5)(E)(vii)(III).
Terminations are an integral component of maintaining EB-5 program
integrity. USCIS incurs costs to conduct these terminations and
historically has funded those costs through EB-5 request fees (formerly
a Form I-924, and more recently Forms I-956 and I-956F).
In the proposed rule, USCIS estimated regional center termination
costs separately in the EB-5 fee study, using the same ABC methodology
applied to other IPO workloads. USCIS estimated a completion rate of
108 hours per termination and an average annual total cost of
approximately $6.8 million. See 88 FR 402, 509 (Jan. 4, 2023). The
proposed rule further explained that it would not be practical to
charge a separate fee at the point of termination, particularly where
the basis for termination may be failure to pay required fees,
including the Integrity Fund fee. See INA 203(b)(5)(J)(iv)(II), 8
U.S.C. 1153(b)(5)(J)(iv)(II). DHS, therefore, proposed to continue
recovering termination costs through the fees for Forms I-956 and I-
956F.
[[Page 61952]]
In this final rule, USCIS updates the projected cost of regional
center terminations and clarifies the assumptions for it. In this final
rule, DHS explains that the workload called Regional Center
Terminations includes more than just terminations. It also includes
reaffirmations for regional centers that resolve issues before their
termination. For example, it includes the estimated cost of a regional
center that received a Notice of Intent to Terminate and responds
sufficiently to resolve the issues, which led to the notice. USCIS
revises the number of regional center terminations and reaffirmations
based on more recent program data and experience since publication of
the proposed rule. USCIS still estimates the completion rate as 108
hours each. Using the same ABC methodology and updated termination
volume assumptions, USCIS now estimates an average annual cost of
approximately $4.8 million for regional center terminations. These
revised cost estimates are incorporated into the final fee
calculations.
In response to public comments, DHS has refined how these costs are
allocated. Specifically, DHS no longer applies the cost of regional
center terminations to Form I-956 amendments but continues to apply the
cost to initial Form I-956 filings and Form I-956F. Commenters
expressed concern that Form I-956 amendments--particularly those
reflecting ministerial or administrative changes--should not bear the
cost of termination activities. DHS agrees that allocating termination
costs solely to initial Form I-956 applications more appropriately
align those costs with the underlying program risk and avoids
overburdening Form I-956 amendment filings.
As discussed in the proposed rule, the EB-5 Integrity Fund,
established at INA section 203(b)(5)(J)(iii), 8 U.S.C.
1153(b)(5)(J)(iii), is expressly designated for compliance, fraud
investigation, audits, and site visits, and does not explicitly provide
a separate revenue stream for typical adjudicative activities, such as
terminations. DHS, therefore, continues its longstanding practice of
funding regional center termination costs through EB-5 request fees,
and this final rule reflects updated cost, volume, and allocation
assumptions for those activities.
D. Revised EB-5 Technology Fee
The EB-5 Reform Act authorized USCIS to charge a technology fee not
greater than one percent of some fees. See Public Law 117-103, div. BB,
sec. 106(c). DHS may use the revenue from this fee to make improvements
to the information technology systems which process, adjudicate, and
archive applications and petitions. Id. In the proposed rule, DHS
included a $95 EB-5 technology fee for Forms I-526 and I-526E. See 90
FR 48516, 48530. The proposed fee was 1 percent of the fee before
including the EB-5 technology fee, rounded down to the nearest $5
increment. Id.
In this final rule, DHS recalculates the EB-5 technology fee based
on the results of the revised EB-5 fee study using estimates for FY
2026 and 2027. Using the same methodology as the proposed rule, the EB-
5 technology fee is $75. The fees in Table 1 earlier in the preamble
include the $75 when it applies. In the proposed rule, DHS did not
clarify when the EB-5 technology fee did not apply but listed a reduced
fee for Form I-526E amendments in the preamble. See 90 FR 48516, 48517;
see also proposed 8 CFR 106.2(d)(2). In this final rule, DHS clarifies
when the EB-5 technology fee applies in the regulations for EB-5 fees.
See new 8 CFR 106.2(d)(2)(iii).
E. Change to Inflation Adjustment to EB-5 Integrity Fund Fees
DHS proposed to increase EB-5 Integrity Fund fees by the rate of
inflation since enactment of the EB-5 Reform Act on March 15, 2022. See
90 FR 48516, 48531-48532. The EB-5 Reform Act authorized DHS to adjust
the Integrity Fund fees as necessary to ensure that amounts in the Fund
are sufficient to carry out the permissible uses of the fund. See INA
sec. 203(b)(5)(J)(ii)(III), 8 U.S.C. 1153(b)(5)(J)(ii)(III); see also 8
U.S.C. 1153(b)(5)(J)(iii). At the time, DHS used the CPI-U from the
first half of 2022 to the first half of 2024. See 90 FR 48516, 48531-
48532. However, DHS indicated that it may revise the amounts based on
more recent information in the final rule. Id. Adjusting the EB-5
Integrity Fund fees to account for more recent inflation information
will allow USCIS to recover more of its operating costs associated with
maintaining the integrity of the EB-5 program and help sustain USCIS
efforts in future years. Using annual averages also removes seasonality
from the inflation adjustment.
In this final rule, DHS sets the EB-5 Integrity Fund Fees using
CPI-U information from 2022 to 2025. The annual average inflation for
2022 was 292.655.\22\ The annual average for 2025 was 321.943. Id.
Therefore, the CPI-U increased by 10.01 percent from 2022 to 2025.\23\
Applying this to the current fees, the Form I-526E EB-5 Integrity Fund
Fee of $1,000 will increase to $1,100; the $10,000 Regional Center
Integrity Fund Fee will increase to $11,000; and the $20,000 Regional
Center Integrity Fund Fee will increase to $22,000.\24\
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\22\ The latest CPI-U data is available at <a href="https://data.bls.gov/timeseries/CUUR0000SA0">https://data.bls.gov/timeseries/CUUR0000SA0</a> (last visited 1/26/2026). To see annual
averages, select the More Formatting Options link, check the box for
Annual Average, and then click the Retrieve Data button.
\23\ DHS calculated this by subtracting the annual 2022 CPI-U
(292.655) from the annual 2025 CPI-U (321.943), then dividing the
result (29.29) by the annual 2022 CPI-U (292.655). Calculation:
(321.943 - 292.655)/292.655 = .1001 x 100 = 10.01 percent.
\24\ DHS rounds all these fees to the nearest $5 increment.
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DHS considered different date ranges and the resulting percentage
change in CPI-U before determining the inflation adjustment for this
final rule. For example, DHS considered finalizing the proposed
inflation adjustment of 8.25 percent.\25\ However, this approach would
omit over a year of inflation that has occurred since the calculation
of the proposed inflation adjusted. While the proposed rule was
published in October 2025, the inflation adjustment only used data from
first half of 2022 to the first half of 2024. Meaning, the latest
inflation data was as of June 2024. Yet another alternative approach
would be to continue using a starting point of the first half of 2022
and only update the endpoint to the first half of 2025. However, such
an approach would result in an 11 percent increase in final fees.\26\
As such, the 10 percent increase used in this final rule may be
considered a midrange inflation adjustment because it is less than the
inflation semiannual periods in 2022 and 2025, but it is more than
proposed inflation adjustment using semiannual data from 2022 to 2024.
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\25\ 90 FR 48516, 48532.
\26\ The CPI-U index for the first half of 2022 was 288.347. In
the first half of 2025, it was 320.229. The difference between the
two is 31.882 or approximately 11.1%. Calculation: (320.229-
288.347)/288.347 = .1106 x 100 = 11.06 percent.
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Integrity Fund revenue has varied from year to year, which affects
USCIS planning for EB-5 integrity activities. See 90 FR 48516. For the
FY 2026/2027 period, USCIS estimates that Integrity Fund collections
under the current fee levels will total approximately $13.9 million
annually. Increasing the Integrity Fund fees by 10 percent in this rule
is projected to increase annual revenue to approximately $15.3 million
and help maintain the purchasing power of USCIS investments in staffing
and information technology that support EB-5 program integrity.
[[Page 61953]]
IV. Response to Public Comments on the Proposed Rule
A. Summary of Comments on the Proposed Rule
DHS provided a 60-day comment period following publication of the
proposed rule. DHS received 28 public comment submissions in docket
USCIS-2025-0139 in response to the proposed rule. Of the 28
submissions, 22 were unique submissions and the remainder of the
comments were form letter copies, not germane to the rule, or contained
comments and requests that were entirely outside of the scope of the
rule. Several submissions were anonymous, while the remaining were from
individuals, advocacy groups, lawyers or law firms, and businesses.
Some commenters expressed support for the proposed rule or supported
one or more specific provisions of the proposed rule without
recommending changes. Some commenters opposed the rule and expressed
opposition to one or more provisions without recommending changes. Many
commenters provided mixed comments of both support for and opposition
to various provisions of the proposed rule, provided general support
with suggested revisions, provided general opposition with suggested
revisions, or were unclear on whether the comment supported or opposed
the proposed rule. DHS reviewed all the public comments received in
response to the proposed rule and addressed relevant comments in this
final rule, grouped by subject area. DHS also received several comments
on subjects unrelated to the proposed fees that are outside of the
proposed rule's scope. DHS has not individually responded to these
comments but has summarized out of scope comments and provided a
general response in Section IV.H of this preamble.
B. General Feedback on the Rule
1. Support for the Rule
Comment: Several commenters expressed general support for the
proposed rule. Some commenters expressed support for the rule reasoning
that the fee adjustments would do the following:
<bullet> Incentivize participation in the program by immigrants
seeking to invest in the U.S.
<bullet> Allow the source of money to be legitimized, due to
thorough background checks.
<bullet> Show that immigrant investors are partners in building
America's future.
Response: DHS appreciates the commenters' support for the proposed
rule and acknowledges the perspectives provided regarding the positive
impacts of the fee adjustments. DHS agrees that appropriately
calibrated fees are an important element in ensuring the continued
viability and accessibility of the EB-5 program for a diverse range of
investors, including small enterprises. DHS recognizes that a balanced
fee structure can help prevent smaller entities from being excluded
from participation, thereby supporting broader economic development
objectives that foster job creation and investment.
DHS also notes that incentivizing participation by immigrant
investors aligns with Congressional intent to stimulate job creation
and capital investment in the United States. The EB-5 program is
designed to attract individuals who are committed to contributing to
the U.S. economy,\27\ and the fee adjustments are intended to provide
USCIS with the resources necessary to efficiently and effectively
administer the program, including robust vetting and background checks.
These measures help ensure the legitimacy of investment sources and
maintain the integrity of the program.
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\27\ See USCIS, DHS, EB-5 Questions and Answers. <a href="https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/about-the-eb-5-visa-classification">https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/about-the-eb-5-visa-classification</a> (Last Updated: Nov. 18, 2025).
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Furthermore, DHS acknowledges that investment immigration
contributes to economic growth and job creation in the United States.
DHS remains focused on administering the EB-5 program in accordance
with statutory requirements and maintaining program integrity through
clear and effective regulatory processes.
After careful consideration of these supportive comments, DHS did
not make changes to the final rule based on these remarks, as the
comments affirm the direction and objectives of the rule as proposed.
2. Opposition to the Rule
Many commenters stated their general opposition to the proposed
fees, the magnitude of the fee adjustments, or specific policy changes
in the proposed rule. DHS summarizes and responds to these public
comments in the following sections:
a. Negative Impacts on Applicants
Comment: Some commenters stated the new fees would
disproportionately affect smaller investors and USCIS should consider a
scaled or transitional fee structure to avoid unintended barriers to
program participation. A commenter stated the proposed fees may prevent
smaller investors from being able to afford the fees and reduce the
motivation of larger investors.
Response: This fee rule is not intended to reduce or limit small or
large investors. These fee adjustments reflect DHS's best effort to
balance access, affordability, equity, and benefits to the national
interest while providing USCIS with the funding necessary to maintain
adequate services. USCIS receives no Congressional appropriation for
the EB-5 program, and filing fees are necessary to provide the
resources required to perform the work associated with such filings.
When fees do not fully recover costs, USCIS cannot maintain sufficient
capacity to process requests within the processing times referenced in
the EB-5 Reform Act.
DHS acknowledges commenters' concerns regarding the potential
impact of increased fees on smaller investors and the suggestion to
implement a scaled or transitional fee structure. DHS carefully
considered the balance between program accessibility and the need to
recover the full costs of administering the EB-5 program, as required
by statute. The fee adjustments in this rule are based on a
comprehensive fee study and are designed to ensure that USCIS has
sufficient resources to maintain timely and effective processing of EB-
5 benefit requests, support program integrity, and fulfill statutory
mandates.
While DHS recognizes that higher fees may present challenges for
some applicants, particularly smaller investors, the Department must
ensure that fees reflect the actual costs of adjudication, fraud
prevention, and compliance activities. Setting fees below cost recovery
levels could compromise USCIS' ability to provide adequate services and
maintain program integrity. DHS considered alternatives, including
tiered or transitional fee structures, but determined that a uniform
fee schedule is necessary to equitably distribute costs and avoid
administrative complexity.
b. Negative Impacts on U.S. Economy, Employers, or Workers
Comment: Other commenters stated the new fees would:
<bullet> Create detrimental impacts to the job opportunities
created through EB-5.
<bullet> Jeopardize investor immigration status, disrupt multi-
million-dollar projects, and damage local economies.
Response: DHS acknowledges that the fees being finalized may
generate a larger impact to small entities but does not have evidence
that the changes will significantly impact job opportunities,
investments, or projects, or damage local economies. Further, the
[[Page 61954]]
commenters did not provide any studies or empirical data to support
their assertion that the fees would have such impacts. The pace and
focus of EB-5 investments rely on numerous economic, financial, and
international business factors, and are not primarily driven by form
related fees. The fees being finalized are very small relative to most
investment amounts and while DHS recognizes that some investors and
projects may be impacted, the Department does not believe the scale of
any such effects would warrant not finalizing the regulatory action,
which is required by law.
DHS remains committed to monitoring the impact of fee changes on
program participation and will continue to evaluate whether future
adjustments or alternative approaches may be warranted. Currently, the
fee schedule reflects DHS's best effort to balance access,
affordability, and operational needs, consistent with statutory
requirements.
c. Negative Impact on Agency Operation
Comment: One commenter stated that there are no legal or policy
justifications for reducing fees for this population. The commenter
stated that the proposed rule did not discuss the impact that these
fees would have on USCIS' overall fiscal picture. The commenter stated
that there was no discussion on why EB-5 fees do not recover a portion
of the work that USCIS does for free, such as humanitarian
adjudications.
Response: DHS acknowledges the commenter's concern that lower EB-5
fees could negatively affect USCIS funding and that the proposed rule
did not sufficiently address USCIS' overall fiscal outlook. However,
DHS disagrees that the rule did not discuss the legal justification for
proposed EB-5 fees and why they did not recover the cost of a portion
of the work that USCIS does for free.
DHS sets fees under INA section 286(m), 8 U.S.C. 1356(m), and
applicable fee guidance (including OMB Circular A-25) to recover, to
the extent practicable, the full costs of providing adjudication and
naturalization services. The EB-5 fees in this rule are based on a
program-specific fee study that incorporates projected EB-5 workloads,
direct and indirect costs, and the statutory framework of the EB-5
Reform Act. See Public Law 117-103, div. BB, sec. 106; 90 FR 48516,
48522-48530. As discussed in the proposed rule, the EB-5 Reform Act
authorizes DHS to add an amount to EB-5 program fees. See 90 FR 48516,
48525-48526. However, the EB-5 Reform Act provision that authorized
adding an amount to EB-5 fees to cover free services is inconsistent
with how DHS has historically set USCIS fees. See id. Therefore, DHS
chose to propose fees that do not recover those costs out of an
abundance of caution, to reduce litigation risk, and because the costs
not transferred are being funded adequately by other fees.
Although some EB-5 fees are lower than those in the FY 2022/2023
fee rule, DHS is not reducing fees arbitrarily. The adjustments reflect
updated cost and volume data, the specific EB-5 statutory requirements,
and the litigation discussed in this preamble. The fees set in this
rule demonstrate that USCIS can continue to support EB-5 operations and
integrity activities. Revenue from other workloads beyond the scope of
this rulemaking will supply the remaining funding necessary for the
IEFA account.
DHS also notes that the EB-5 Integrity Fund, authorized at INA
section 203(b)(5)(J), 8 U.S.C. 1153(b)(5)(J), provides a dedicated
source of funding for certain fraud detection and compliance
activities, which mitigates pressure on IEFA revenues. Accordingly, DHS
disagrees that there is no legal or policy basis for these fee
adjustments or that they jeopardize USCIS' overall fiscal position. As
discussed in the proposed rule, other revenue sources, such as new fees
for asylum applications, may offset some of the cost of work, which
USCIS has not traditionally charged a fee. See 90 FR 48516, 48526.
USCIS may offset the difference between IEFA cost and IEFA revenue for
other programs or workloads by pursuing separate rulemakings, shifting
costs to different fee accounts, or reducing the IEFA non-premium
budget. For example, USCIS could shift costs to the premium processing
account, as discussed in the FY 2022/2023 fee rule.\28\ DHS recently
increased the premium processing fees by inflation, as authorized by
statute.\29\
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\28\ See, e.g., 89 FR 6195.
\29\ See DHS, Adjustment to Premium Processing Fees, 91 FR 1059
(Jan. 12, 2026).
---------------------------------------------------------------------------
C. Background and Legal Authority
Comment: Several commenters mentioned codifying processing time
goals in regulation. They stated that it would clearly articulate the
agency's commitment to timely processing, and to specific and
measurable time goals drawn from the authorizing statute.
Response: DHS acknowledges the comment regarding the codification
of processing time goals in regulation. The EB-5 Reform Act mandates
that DHS set fees with the objective of achieving specific average
processing times for EB-5 benefit requests. This final rule
incorporates those statutory processing time goals as part of the fee-
setting methodology and explains them in the preamble.
DHS is committed to transparency and accountability in adjudication
timelines and will continue to monitor performance against these
statutory goals. While DHS regulations contain some non-binding
provisions, the better practice is to limit codification to
requirements and not promulgate goals, targets or objectives in the
Code of Federal Regulations. Therefore, referencing the statutory
timeframes in the rule and supporting regulatory analysis is the most
appropriate approach, rather than in regulatory text. Thus, DHS makes
no changes in this final rule based on these comments. DHS will
continue to evaluate program performance and consider further
regulatory or operational changes as needed to support timely
adjudication.
Comment: DHS received a comment requesting that USCIS provide
comprehensive regulations implementing the EB-5 Reform Act including
clarification of the sustainment period, investor protections, and
other aspects of the EB-5 Reform Act requiring regulations.
Response: As noted earlier, DHS is working on a related rulemaking,
which would propose amendments to EB-5 program regulations, that, if
finalized, would fully implement the statutory reforms made by the EB-5
Reform Act. See section II.D.1 of this preamble. That rule is still in
development. As such, DHS makes no changes to this rule based on this
comment because DHS may address the commenter's concerns in another
rulemaking. In future rulemaking, DHS may reconsider EB-5 fees based on
statutory and regulatory requirements.
D. Fee Setting Approach
1. Processing Time Goals
Comment: DHS received many comments related to processing times,
which can be summarized as follows:
<bullet> The average processing time goals need to be improved.
<bullet> The processing time goals should be the driving force
behind the new fees.
<bullet> Regional Centers and investors would be supportive of fee
increases if they were accompanied by shorter processing times.
<bullet> In the final rule, USCIS should establish adjudication
processing goals to promote predictability and accountability in
processing. Adopting adjudication timeframes for EB-5-
[[Page 61955]]
related filings would reduce uncertainty for stakeholders and enhance
program integrity.
<bullet> Emphasis on the importance of benchmarking the EB-5
adjudication timeframes as statutorily required under EB-5 Reform Act
section 106.
Response: DHS appreciates commenters' feedback regarding processing
times and the relationship between fees and adjudication speed. The EB-
5 Reform Act requires DHS to set fees with the goal of achieving
specific average processing times for EB-5 benefit requests. In
developing this rule, DHS considered these statutory timeframes and
incorporated them into the fee-setting methodology to ensure USCIS has
the resources necessary to meet processing goals.
DHS recognizes that timely adjudication is important to program
stakeholders and will continue to monitor and report on processing
times. While fee adjustments are intended to support improved service
levels, actual processing times may be affected by factors, such as
application volume, staffing, and case complexity. DHS remains
committed to ongoing evaluation of operational performance and will
consider further adjustments or process improvements as needed to
enhance adjudication speed and program efficiency.
DHS acknowledges commenters' recommendations to establish and
benchmark adjudication processing goals for EB-5-related filings. The
EB-5 Reform Act section 106 sets forth statutory processing timeframes
that DHS has incorporated into the fee-setting methodology for this
rule. DHS agrees that clear processing goals promote predictability,
accountability, and program integrity. USCIS will continue to monitor
performance against these statutory benchmarks. DHS remains committed
to ongoing evaluation of operational efficiency and transparency in EB-
5 adjudications and will consider further measures to enhance
stakeholder confidence and reduce uncertainty where feasible. However,
no changes are made to the final rule regulatory text to address
processing time goals.
2. EB-5 Fee Study
Comment: Multiple commenters requested greater transparency in the
fee-setting methodology. They suggested providing clearer explanations
on how the fees allocate specific costs, like fraud detection, site
visits or regional center monitoring. Another commenter requested that
USCIS release form-specific completion-time and cost data when
finalizing the rule. Another stated that USCIS should align any EB-5
fee changes with OMB Circular A-25 (Revised) and INA Sec. 286(m),
including transparent cost accounting and consideration of fee
alternatives (phased implementation, small-entity reductions, caps, or
installment options).
Response: DHS appreciates the commenters' concern for transparency
in the fee-setting approach. We published detailed information on the
estimated EB-5 costs in the docket for the proposed rule.\30\ We
updated the fee study to include various changes in this final rule and
that study is consistent with OMB Circular A-25 and previous USCIS fee
rules. See the Revised EB-5 Fee Study for the final rule in the docket.
In some sections, we elaborate further on how we derived the cost
estimates. The document also provides form-specific completion rates
and cost data. As such, DHS responds to this comment by making changes
to the revised EB-5 fee study.
---------------------------------------------------------------------------
\30\ See USCIS, EB-5 Fee Study, available at <a href="https://www.regulations.gov/document/USCIS-2025-0139-0008">https://www.regulations.gov/document/USCIS-2025-0139-0008</a>.
---------------------------------------------------------------------------
Comment: Commenters had concerns with the data used in the EB-5 fee
study. A commenter thought that the workload assumptions in the EB-5
fee study were unrealistic. They cited USCIS actual data for FY 2025,
which showed higher receipts than the forecasts for FY 2024 and FY 2025
that were part of the EB-5 fee study. They stated that establishing new
fees based on only FY 2024 and incomplete FY 2025 data would be flawed.
They stated it was short sighted to only examine FY 2024 and FY 2025
workload because without anticipating changes in FY 2026 and FY 2027
the EB-5 backlog will grow. One commenter requested that USCIS use data
(like workloads, processing times, completion rates, etc.) it has
collected since the enactment of the EB-5 Reform Act to advance the fee
study in an effort aimed at reaching the processing goals as outlined
by Congress.
Response: DHS appreciates the commenters' concern with the data in
the EB-5 fee study. DHS agrees that robust data analysis is essential
to accurately assess resource needs and set fees that support statutory
processing goals. In developing this rule, DHS considered available
data and incorporated relevant metrics to inform the fee-setting
methodology. To clarify, the proposed fees were not based on actuals
from FY 2024 and part of FY 2025. The proposed fees relied on workload
forecasts for FY 2024 and 2025, as explained in the preamble and the
EB-5 Fee Study. See, e.g., 90 FR 48516, 48523-48524. See also Appendix
3 of the Revised EB-5 Fee Study included in the docket for this
rulemaking. Since drafting the proposed rule and EB-5 fee study USCIS
collected additional information, which it includes in this final rule.
For example, DHS revises the fees in this final rule based on new
forecast data for FY 2026 and FY 2027, as explained earlier in this
preamble.\31\ These actual receipts in FY 2024 and FY 2025 informed the
workload forecasts that DHS used to propose and set EB-5 fees. For
example, the docket for this rule includes a Revised EB-5 Fee Study
document that uses FY 2026 and 2027 receipt forecasts, which were
developed in FY 2025. As such, some of the FY 2025 actual receipts
informed the FY 2026 and FY 2027 forecasts. DHS responds to this
comment by using more recent budget and operational forecasts data to
calculate the final fees. DHS will continue to collect and analyze
program data and will use these insights to guide future fee reviews
and operational improvements, consistent with statutory requirements.
---------------------------------------------------------------------------
\31\ See section III.C. of this preamble.
---------------------------------------------------------------------------
Comment: A commenter requested that USCIS explain how it derived
the completion rates for Forms I-526 and I-526E. They requested further
details on why a Form I-526E may have operational efficiencies compared
to a Form I-526. They noted that Forms I-526 and I-526E used the same
completion rate in the EB-5 Fee Study in the proposed rule docket. They
compared the completion rates for Forms I-526, I-526E, and I-829 in the
proposed rule to the rates for the same forms in the FY 2022/2023 fee
rule. They noted that the completion rate for a Form I-829 was the same
in both rulemakings but the completion rate for Forms I-526 and I-526E
increased from 5.01 hours to 16.3 hours. They questioned the rationale
for using the same completion rate for both Forms I-526 and I-526E when
there should be adjudicative efficiencies for a Form I-526E when
information was already provided with a Form I-956F. They also stated
that online adjudication of a Form I-526E should be more efficient than
an older paper-based approach to adjudication.
Response: DHS appreciates the commenters' concern for the
completion rates in the EB-5 fee study. We note that the EB-5 fee study
and the FY 2022/2023 fee rule used different authorities and
assumptions. The EB-5 Reform Act was out of scope for the FY 2022/2023
final rule. See, e.g., 89 FR 48516, 6239
[[Page 61956]]
and 6285-6288 (Oct. 23, 2025). As such, the FY 2022/2023 final rule did
not include changes to completion rates that resulted from the EB-5
Reform Act. The EB-5 fee study in the proposed rule includes the
effects of the EB-5 Reform Act on its completion rates, including time
needed to review documentation required at INA sec. 203(b)(5)(L)(ii), 8
U.S.C 1153(b)(5)(L)(ii), to demonstrate that the capital and any funds
used for the alien's investment were obtained from a lawful source and
through lawful means. As explained in the proposed rule, USCIS
estimated completion rates of EB-5 forms by extrapolating staff hours
spent on EB-5 adjudications and estimates from subject matter experts
on EB-5 request processing. See, e.g., 90 FR 48516, 48524-48525.
In this final rule, DHS sets fees based on more recent forecasts
and completion rates for FY 2026 and 2027, which includes different
completion rates for Forms I-526 and I-526E (8.76 and 9.14 hours
respectively). These rates show a slightly higher completion rate for
Form I-526E than Form I-526. USCIS notes that while the commenter is
correct that Form I-526E does not include the project information that
would have been adjudicated in Form I-956F and is not processed in a
paper-based format like Form I-526, USCIS has found that those slight
adjudicative efficiencies have generally been exceeded by the
additional adjudicative work to review INA sec. 203(b)(5)(L)(ii), 8
U.S.C. 1153(b)(5)(L)(ii), required documentation for Form I-526E
filings. See section III.C.1 of this preamble and the Revised EB-5 Fee
Study document in the docket for more information, including how USCIS
derived the completion rates. In summary, USCIS used the most recent
staffing allocation models for FY 2026 for the completion rates in this
final rule. Older staffing allocation models provided some of the
completion rates used in the FY 2022/2023 fee rule and the proposed
fees, which used forecasts for FY 2024/2025. DHS believes that
incorporating the new information in this final rule responds to the
commenter's concerns.
3. Fee Refunds
Comment: One commenter stated that investors who filed petitions
after the fee increases in 2024 should receive a refund. They stated
that fees in the proposed rule were lower than in the FY 2022/2023 fee
rule.\32\ They noted that investors overpaid fees after Moody v. Noem,
No. 24-cv-00762-CNS (D. Colo.), stayed certain EB-5 related fees in the
FY 2022/2023 fee rule.\33\
---------------------------------------------------------------------------
\32\ See 89 FR 6194 (Jan. 31, 2024).
\33\ See USCIS, Court Order on Partial Stay of DHS 2024 USCIS
Fee Rule, <a href="https://www.uscis.gov/newsroom/alerts/court-order-on-partial-stay-of-dhs-2024-uscis-fee-rule">https://www.uscis.gov/newsroom/alerts/court-order-on-partial-stay-of-dhs-2024-uscis-fee-rule</a> (last reviewed/updated Nov.
18, 2025).
---------------------------------------------------------------------------
Response: DHS and USCIS believe the Court's decision in Moody v.
Noem is incorrect but we have implemented it. Notably, Moody did not
provide a monetary award and stated that it did not require any
reimbursement of funds. Moody, at 6. On Nov. 12, 2025, USCIS reverted
to accepting the EB-5 fees that were in effect until March 31, 2024.
USCIS informed the public that they would accept the previous fee for
items postmarked before Nov. 26, 2025.\34\ As a result, the current
fees shown in this preamble are different from current fees listed in
the proposed rule. See, e.g., 90 FR 48516, 48517; see also 8 CFR 106.2.
USCIS is not required to issue a fee refund to investors who paid the
fees that were effective April 1, 2024, thus, DHS takes no action in
response to this comment.
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\34\ Id.
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E. Proposed Form or Fee Changes
DHS received comments on the proposed form/fee changes for specific
forms, which we address in the following subsections.
1. New Form I-527, Amendment to Legacy Form I-526
Comment: Several commenters stated that DHS should reconsider the
proposed $8,000 fee for a Form I-527. Some commenters felt the proposed
$8,000 fee was punitive and too expensive for investors who may face
other legal fees and administrative costs. They suggested a nominal fee
that only covered the administrative costs of processing the form or
offering fee waivers. Some commenters said the proposed $8,000 fee was
disproportionate to the narrow purpose of this form. They suggested
recalculating the fee to reflect the narrow scope. One commenter
suggested a reduced-fee pathway where the investor's need to amend
arises from agency termination or debarment actions that do not
implicate the investor's own conduct. Similarly, a commenter suggested
a reduced fee or EB-5 Integrity Fee offset. Another commenter suggested
that DHS lower the fee for investors who do not have to invest new
capital in their amendment and suggested that fewer hours will be
involved in adjudicating those petitions.
Response: DHS recognizes commenters' concerns regarding the
affordability of a Form I-527. However, while DHS recognizes the
challenges an investor may face, DHS does not believe that these
factors justify fee-waiver eligibility nor a reduced fee for a Form I-
527. USCIS can only allow a limited number of forms to be eligible for
fee waivers, or else it would require even further increases in fees to
cover the costs of processing fee-waived requests. In previous fee
rules, DHS chose to prioritize fee waivers for humanitarian and
protection-related immigration forms where the beneficiary may not have
a reliable income or their safety or health is an issue. See, e.g., 89
FR 6256. USCIS does not typically offer fee waivers for employment-
based benefit requests.
The EB-5 Integrity Fund is a relatively new revenue source for
USCIS. The intended uses of the fund are somewhat narrow.\35\ At this
time, DHS will not reduce any IEFA filing fee, including the Form I-527
fee, because of offsetting revenue from the EB-5 Integrity Fund.
Rather, DHS calculates IEFA fees after considering the totality of
resources available to USCIS, including revenue from the EB-5 Integrity
Fund, other statutory fees, and appropriations.\36\
---------------------------------------------------------------------------
\35\ See sections II.B. and III.E. of this preamble. See also 90
FR 48516, 48530-48534.
\36\ See section II.B. of this preamble.
---------------------------------------------------------------------------
In this final rule, USCIS reevaluated the volumes, completion
rates, and budget that it used to calculate the proposed fees based on
public comments.\37\ Currently, relatively few investors have opted to
amend their petition to demonstrate eligibility under INA
203(b)(5)(M)(ii). Specifically, USCIS sent out the first set of notices
to provide investors with a notification of the options to retain their
eligibility under INA 203(b)(5)(M). As of July 20, 2026, which is after
the 180-day response period, approximately 10 percent of the investors
who responded indicated their interest in choosing to amend their
petition. USCIS is unsure if this trend will continue across pre-EB-5
Reform Act populations impacted by future terminations and debarments,
and USCIS does not have multi-year data to inform projections. However,
based on the low percentage of this first set of notice responses, and
because it is the only data source available at this time, USCIS
lowered the original projections in the proposed rule. The completion
rate in this final rule remains the same as in the proposed rule. Based
on the limited experience with this adjudication to date, USCIS subject
matter experts continue to
[[Page 61957]]
believe it represents the best available estimate for the adjudication
hours per completion. Part of the reason that the Form I-527 fee in
this final rule is higher than in the proposed rule is because the
overall budget for USCIS and IPO budget are higher in this final rule
than in the proposed rule. Therefore, DHS determined that the final
Form I-527 fee of $10,330 set in this final rule is necessary for full
cost recovery. DHS declines to make changes based on this comment,
except for budget and operational changes described elsewhere in this
final rule, which may affect the final fee. In future rulemakings, DHS
will reconsider the fee for Form I-527 when it has more data or newer
estimates.
---------------------------------------------------------------------------
\37\ See section III.C. of this preamble for more information.
---------------------------------------------------------------------------
Comment: A commenter stated that investors should have reasonable-
cause flexibility where court oversight, receiverships, escrow
constraints, or similar legal processes delay the ability to receive,
recover, or redeploy misappropriated capital before filing (or
completing) a Form I-527 amendment.
Response: DHS acknowledges that legal processes may cause delays.
However, DHS will adhere to statutory deadlines as outlined under INA
sec. 203(b)(5)(M), 8 U.S.C. 1153(b)(5)(M), regarding length of time to
file a Form I-527 amendment after notifying investors of termination or
debarment. Depending on the circumstances, DHS may extend applicable
deadlines under INA sec. 203(b)(5)(M)(v)(II), 8 U.S.C.
1153(b)(5)(M)(v)(II).
Comment: A commenter stated that USCIS should clarify that an
investor before the EB-5 Reform Act does not need to file a Form I-527
if the investor continues to be eligible with respect to the investment
and job creation requirements notwithstanding regional center
termination, including where termination is based on administrative
noncompliance that does not directly implicate the underlying
investment or job creation.
Response: USCIS policy provides that, in general, pre-EB-5 Reform
Act investors may remain eligible if their project is complete or will
be completed in accordance with the comprehensive business plan, with
sufficient job creation for all investors, and the investor's capital
has been and will be sustained through the requisite 2-year sustainment
period of their conditional residency.\38\ In such cases, officers may
plausibly determine that a pre-EB-5 Reform Act investor associated with
the terminated regional center is still eligible for classification as
an immigrant investor, even without the need to reassociate with
another approved regional center or make a qualifying investment in
another NCE. Also, USCIS generally does not consider such termination a
material change that affects continued eligibility.\39\
---------------------------------------------------------------------------
\38\ See USCIS, EB-5 Questions and Answers, <a href="https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-questions-and-answers">https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-questions-and-answers</a> (last Feb. 25, 2026).
\39\ Id.
---------------------------------------------------------------------------
Comment: A commentor stated that USCIS should provide clear
guidance on whether there are any circumstances under which a pre-EB-5
Reform Act investor should file a Form I-527 solely to reaffiliate with
a new regional center in case where the investor otherwise remains
eligible and does not require an amendment to preserve
classification.\40\
---------------------------------------------------------------------------
\40\ Id.
---------------------------------------------------------------------------
Response: If an investor otherwise remains eligible notwithstanding
termination of their regional center and is, therefore, not required to
file an amendment to preserve classification, they would not need to
file a Form I-527 solely to reaffiliate with a new Regional Center.
Comment: The draft Form I-527 language (``made a qualifying
investment in or otherwise associated with another NCE'') should
clarify how partial job creation satisfaction affects the amount of
additional capital that must be invested and whether ``otherwise
associated'' options depend on whether the investor is responding to
regional center termination versus NCE/JCE debarment.
Response: Form I-527 implements the collection of information to
amend a pre-EB-5 Reform Act Form I-526 for the purposes of establishing
continuing eligibility in compliance with INA sec. 203(b)(5)(M), 8
U.S.C. 1153(b)(5)(M). Form I-527 is not intended to provide guidance on
establishing continued eligibility in various circumstances. USCIS
acknowledges the commenter's request for additional guidance regarding
the statutory requirements related to Form I-527 amendments and will
consider providing sub-regulatory guidance as needed in the future.
Comment: One commenter stated that USCIS should revise termination
and debarment notices sent to investors to disclose, at a minimum, the
general basis for the agency action so that investors can understand
the context and respond effectively. This commenter also stated that
because approval of a Form I-527 amendment depends partly on a
determination that the investor was not a knowing participant in the
conduct that led to termination or debarment, the final rule and form
instructions should expressly provide a mechanism for the investor to
submit that attestation, along with supporting evidence as appropriate.
Response: Rulemaking is unnecessary to address revisions to
termination and debarment notices as such notices can be revised
separate and apart from the rulemaking process. DHS will consider this
request and take sub-regulatory action as needed. Furthermore, DHS
acknowledges the request that a Form I-527 should expressly provide a
mechanism for the investor to submit an attestation that they were not
a knowing participant in the conduct that led to termination or
debarment, though DHS believes that this change is not necessary
because investors are not precluded from submitting such an affidavit
with Form I-527.
Comment: A commenter recommended a centralized, NCE-level filing
mechanism to reduce duplicative adjudications and lower per-investor
costs and provided a detailed framework for this recommendation.
Another commenter recommended that USCIS should ensure electronic
linkage of the Form I-527 filing to the underlying legacy Form I-526
record (and associated project/regional center records where
applicable) and provide clear instructions to prevent duplicative
document requests. This commenter also recommended that USCIS should
implement case-management safeguards to prevent adverse status
consequences while a Form I-527 is pending, including appropriate
tolling/hold-in-abeyance mechanisms where the investor is in a pending
lawful status posture.
Response: Rulemaking is unnecessary to address electronic linkages
between the Form I-527 and the pre-EB-5 Reform Act Form I-526 it amends
for the purposes of establishing continuing eligibility in compliance
with INA sec. 203(b)(5)(M), 8 U.S.C. 1153(b)(5)(M). USCIS systems
capabilities and functionality related to a Form I-527 can be addressed
separate and apart from the rulemaking process. DHS will consider this
request and take sub-regulatory action as needed. DHS remains committed
to providing clear guidance, fair procedures, and efficient processing
for all EB-5 stakeholders. Comment: Commenters requested that USCIS
clarify whether it will accept investments made for purposes of
subsection (M) protections \41\ into an NCE whose offering materials
and supporting evidence are structured according to post-EB-5 Reform
Act requirements, including post-EB-5
[[Page 61958]]
Reform Act TEA definitions and post-EB-5 Reform Act TEA evidence.
Another commenter requested that USCIS should clarify whether investors
before the EB-5 Reform Act must invest in a TEA project to qualify for
the relief under Paragraph M and, if so, provide the TEA definition.
---------------------------------------------------------------------------
\41\ See INA sec. 203(b)(5)(M), 8 U.S.C. 1153(b)(5)(M).
---------------------------------------------------------------------------
Response: As noted earlier, DHS is working on a related rulemaking
which would propose amendments to EB-5 program regulations that, if
finalized, would fully implement the statutory reforms made by the EB-5
Reform Act. See section II.D.1 of this preamble. That rule is still in
development. As such, DHS makes no changes to this rule based on this
comment because DHS may address the commenter's concerns in another
rulemaking.
Comment: A commenter stated that a Form I-527 should not be treated
as the filing of a new immigrant petition for purposes of priority date
retention, should not restart adjudication timelines from ``day zero''
in a manner that prejudices the investor, and should not create a de
facto penalty for invoking subsection (M) protections. USCIS review of
a Form I-527 should be expressly limited to the incremental subsection
(M) issues (including good faith/``knowing participant'' considerations
and the new association/investment structure) and should not require
re-adjudication of lawful source of funds or job creation requirements
that were previously reviewed and found sufficient, absent articulable
fraud, willful misrepresentation, or material error concerns. Another
commenter stated the final rule should specify protections regarding
petition processing and maintaining eligibility consistent with the
statute.
Response: DHS appreciates the detailed feedback regarding the
proposed Form I-527. DHS recognizes the importance of clear guidance
and fair procedures for pre-EB-5 Reform Act investors seeking relief
under section 203(b)(5)(M) of the INA. USCIS will not treat Form I-527
filings as new immigration petitions and will, therefore, retain the
original priority date. There are no penalties for seeking relief under
203(b)(5)(M). Regarding the review of source of funds and job creation,
each adjudication will be assessed on a case-by-case basis, taking into
account the totality of the circumstances under which the investor is
seeking relief and asserting eligibility.
2. Form I-829, Petition by Investor To Remove Conditions on Permanent
Resident Status
Comment: Commenters stated that certain EB-5 investors need clarity
about how they may benefit from subsection (M) of the EB-5 Reform
Act.\42\ The commenters believe Congress sought to protect a number of
investors in the EB-5 Reform Act, which allows investors to preserve
eligibility after termination or debarment through no fault of the
investor. Examples of such investors include individuals with
Conditional Permanent Resident status who have not filed a Form I-829,
those with pending Forms I-829, those with denied Forms I-829 or with a
motion to reopen pending with USCIS or who are currently in removal
proceedings are among those investors that Congress sought to protect.
The commenters stated that DHS should allow immigrant investors an
opportunity to take advantage of such protections notwithstanding the
pendency of removal proceedings or other enforcement actions. The
commenters said that such a filing will not be deemed a motion to
reopen or request termination of proceedings but may be considered by
DHS counsel or the Executive Office for Immigration Review (EOIR) in
adjudicating any related motions. Moreover, the commenters urged DHS to
coordinate with EOIR and ICE to ensure that these amendments or
subsequent filings are recognized as material to an investor's
eligibility for relief, consistent with the interagency collaboration
already required under the EB-5 Reform and Integrity Act's integrity
provisions. The commenters believed that absent such guidance,
similarly situated investors will face inconsistent outcomes contrary
to the protective intent of INA section 203(b)(5)(M), 8 U.S.C.
1153(b)(5)(M).
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\42\ See INA sec. 203(b)(5)(M), 8 U.S.C. 1153(b)(5)(M).
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Response: DHS disagrees with commenters who suggest that the
protections of the EB-5 Reform Act apply to groups other than those
specifically cited in the statute. The statute in question, INA section
203(b)(5)(M), 8 U.S.C. 1153(b)(5)(M), applies only to those investors
who have an otherwise qualified petition filed under INA section
204(a)(1)(H), 8 U.S.C. 1154(a)(1)(H), and investors who have
conditional permanent resident status under INA section 216A, 8 U.S.C.
1186b. Investors whose conditional permanent resident status under INA
section 216A has been terminated, for example, because their Form I-829
has been denied and their status terminated under INA section
216A(c)(3)(C), 8 U.S.C. 1186b(c)(3)(C), are not included within the
scope of protections provided under INA section 203(b)(5)(M), 8 U.S.C.
1153(b)(5)(M). In general, investors whose conditional permanent
resident status has been terminated may seek relief in removal
proceedings, such as review of the denial of the Form I-829 under INA
section 216A(c)(3)(D), 8 U.S.C. 1186b(c)(3)(D). DHS declines to extend
to scope of INA section 203(b)(5)(M), 8 U.S.C. 1153(b)(5)(M), to
investors whose conditional permanent resident status has been
terminated upon denial of Forms I-829, including those who may have a
pending motion or who are in removal proceedings.
Comment: DHS received several comments requesting that the filing
deadline for Form I-829 dependent be separated from the principal
investor's expiration of conditional permanent residence status.
Commenters provided various reasons why this should be changed,
including the principal's death, divorce, or unwillingness to
cooperate. Several commenters specifically recommended that the
dependents' expiration date be based on their own conditional permanent
residence status, not the expiration date of the principal investor.
Response: USCIS follows the statutory requirements under INA sec.
216A(d)(2), 8 U.S.C. 1186b(d)(2), specifying when a Form I-829 must be
filed for derivatives to file Form I-829 separate from the principal
investor. In general, investors must file the Form I-829 within the 90-
day period immediately preceding the second anniversary of obtaining
their conditional permanent resident status (subject to certain
exceptions), and derivatives are tied to the time-period of the
investor. Id. A petition filed after such date may be considered only
if the investor establishes to the satisfaction of USCIS that the
investor's failure to file within that 90-day period was for good cause
and extenuating circumstances. Id.
Comment: A commenter requested examples and scenario-based guidance
for dependents filing separately from the principal investor. Other
commentors requested to allow Form I-829 dependents to file together to
increase processing efficiencies and requested clarification on
dependents filing without the investor.
Response: DHS acknowledges and appreciates the comments regarding
potential processing efficiencies by permitting derivatives to file
Forms I-829 together. DHS declines at this time to permit such a
practice because there are unique considerations related to the
processing of derivative Forms I-829 filed separately from a principal
investor, including the tracking of such petitions, evaluation for
eligibility, post-
[[Page 61959]]
approval processing and other related considerations. Consequently, DHS
believes that requiring Form I-829 derivatives to file independently
best accounts for these considerations and will continue requiring that
derivatives file separate Forms I-829 when not included on the
principal investor's Form I-829 or when the principal investor is
deceased. With respect to scenario-based and other guidance, DHS will
continue to evaluate the need for such guidance and may provide
guidance separate from this rulemaking and form instructions.
3. Regional Center Forms
a. Forms I-956, Application for Regional Center Designation, and I-
956F, Application for Approval of an Investment in a Commercial
Enterprise
Comment: DHS received several comments regarding amendment fee
costs for Forms I-956 and I-956F including the following:
<bullet> Commenters suggested that there should be fair fees for
Forms I-956 and I-956F when the filing involves simple changes, like
amending Form I-956, changing the name of a regional center, or adding
a person involved with a regional center.
<bullet> A number of commenters recommended that USCIS adopt a
tiered approach for EB-5 project-related fees, particularly Forms I-956
and I-956F, to preserve viable pathways for smaller EB-5 projects and
to ensure investors retain meaningful options across a broader range of
project types.
<bullet> Several commenters requested different fees for Form I-956
initial filings and amendments, with the fees for amendments such as
changes to the regional center's name, ownership, organizational
structure, or administration being lower than initial filings.
<bullet> A commenter stated that regional centers do generate
revenue through EB-5 investments and redeployment-related structures,
and larger regional centers operating multiple projects and serving
hundreds of investors generally have greater operational scale to
absorb compliance and filing costs. They stated that regional centers
and project sponsors operating at larger scale should bear a
proportionally greater share of EB-5 fee burdens, particularly where
fee design choices may otherwise shape the EB-5 marketplace and reduce
investor choice. The commenter also recommended a tiered I-956F filing
fee based on total project cost (capital stack) as a workable,
administrable proxy for adjudicative complexity and workload. A
commenter suggested USCIS could implement tiering in a revenue-neutral
manner by setting the tier rates so that, based on expected filing
volumes, the weighted-average revenue aligns with USCIS's cost recovery
needs.
Response: Regarding the fee structure for Forms I-956 and I-956F,
DHS considered alternative approaches, including a tiered fee structure
or nominal fees for amendments involving administrative or non-
substantive changes. However, DHS determined it would not adopt a
tiered fee structure because the lack of data on the processing costs
for amendments creates uncertainty on how many applications would fall
into the various categories that the commenters suggested. In addition,
many amendments require similar work to adjudicate as initial filings.
DHS may reconsider additional fee levels for these forms in future fee
rules when it has more information on which to base variable fees.
Regarding a different fee for Form I-956 for initial filings and
amendments, with lower fees for amendments, DHS recognizes that
amendments may, in some cases, require less extensive review than
initial applications, particularly when changes are limited in scope or
do not affect the substantive eligibility criteria of the investment or
project. Therefore, in the final rule, DHS has revised the proposed
fees for Form I-956 seeking an amendment to be different for a Form I-
956 seeking initial designation and a Form I-956 for an amendment.
However, DHS determined that a uniform fee for Form I-956
amendments is necessary to ensure administrative efficiency and to
recover the costs associated with the review and processing of all
amendment types. Even amendments that appear ministerial may require
verification of compliance with statutory and regulatory requirements,
background checks, and updates to program records, all of which involve
staff time and resources.
DHS recognizes that a tiered fee structure could potentially reduce
costs for certain amendments but would also introduce additional
complexity into the fee schedule and adjudication process, potentially
increasing administrative burdens and the risk of inconsistent
application. DHS will continue to monitor the impact of the current fee
structure and may consider further refinements in future rulemakings if
warranted by operational data and stakeholder feedback.
DHS remains committed to maintaining a fair and transparent fee
schedule that supports program integrity and efficient processing of
EB-5 benefit requests.
Comment: A commenter requested that USCIS allow TEA amendments by
email or abbreviated amendments with commensurate reduced filing fees.
Separately, they also requested that USCIS permit regional centers to
make filings online through the USCIS Online Portal, in a manner like
investors' ability to interfile and file responses online.
Response: DHS determined that a uniform fee for Form I-956F
amendments is necessary to ensure administrative efficiency and to
recover the costs associated with the review and processing of all
amendment types. Even amendments that appear ministerial may require
verification of compliance with statutory and regulatory requirements,
background checks, and updates to program records, all of which involve
staff time and resources. USCIS acknowledges the commenter's request to
permit high unemployment area renewal requests through alternative
means outside of a Form I-956F amendment and will consider providing
sub-regulatory guidance as needed in the future. Additionally, DHS is
committed to technology initiatives to improve the efficacy of
adjudications in line with maintaining data security standards and
ensuring complex filings are able to be captured in their entirety. DHS
will continue to communicate progress, milestones, and performance
benchmarks as these improvements are developed and implemented.
b. Form I-956H, Bona Fides of Persons Involved With Regional Center
Program
Comment: A commenter suggested that USCIS clarify whether an
approved regional center or NCE can add a person involved by filing
Form I-956H without having to file amended Forms I-956 or I-956F.
Response: The statute at INA sec. 203(b)(5)(E)(vi), 8 U.S.C.
1153(b)(5)(E)(vi), requires a regional center to file an amendment to
notify USCIS, no later than 120 days before the implementation of
significant proposed changes to its organizational structure,
ownership, or administration, including the sale of such center, or
other arrangements which would result in individuals not previously
subject to the requirements under INA sec. 203(b)(5)(H), 8 U.S.C.
1153(b)(5)(H), becoming involved with the regional center. Therefore,
if a new person becomes involved with the regional center, the regional
center must notify USCIS of such via an I-956 amendment and that new
person must also file a I-956H to attest to their compliance with
[[Page 61960]]
INA sec. 203(b)(5)(H), 8 U.S.C. 1153(b)(5)(H).
c. Form I-956K, Registration for Direct and Third-Party Promoters
Comment: A commenter stated that Form I-956K, which is for
promoters to register with USCIS, should not have a higher filing fee
than Form I-956H, which is for individuals involved with a regional
center, new commercial enterprise, or affiliated job-creating entity.
They stated that Form I-956H should require more scrutiny to ensure
that the background of the people involved with managing regional
centers, NCEs and JCEs have been properly screened. The same commenter
stated that the proposed rule does not sufficiently explain the
registration approval process for Form I-956K enough to substantiate or
justify a proposed fee of $2,740.
Response: DHS disagrees that the fee for Form I-956K should not be
higher than the fee for Form I-956H. As explained in the proposed rule,
the proposed fees for Forms I-956K and I-956H were based on the results
of the ABC model that USCIS created for the EB-5 Fee Study. See, e.g.,
90 FR 48516, 48525-48529. The proposed fees for Forms I-956G, I-956H,
and I-956K include fewer activities, and thus lower costs, than other
EB-5 workloads. See 90 FR 48516, 48525. USCIS revised the EB-5 fee
study based on feedback from other comments, but the final fees for
Forms I-956G, I-956H, and I-956K still include fewer activities, and
thus lower costs, than other EB-5 workloads. See the Revised EB-5 Fee
Study included in the docket. The proposed and final fees for Form I-
956H are lower than Form I-956K because the fee for Form I-956H is only
meant to recover the cost of form intake and biometric services. In
contrast, the fee for Form I-956K includes additional activities for
fraud investigations, records management, and operational support. DHS
believes that this remains the best approach to setting these fees. In
addition, a person may need to submit Form I-956H if they are involved
with multiple regional centers. As such, to reduce the financial burden
on these individuals, DHS is keeping the Form I-956H fee low when
compared to other EB-5 fees.
Comment: A commenter stated that USCIS could tap the EB-5 Integrity
Fund to offset the revenue reductions from implementing lower fees for
Form I-956K initial applications and amendments.
Response: As explained earlier in this preamble, DHS will not
reduce any IEFA filing fee, including the Form I-956K fee, because of
offsetting revenue from the EB-5 Integrity Fee. Rather, DHS calculates
IEFA fees after considering the totality of resources available to
USCIS, including revenue from the EB-5 Integrity Fund, other statutory
fees, and appropriations.\43\ DHS chooses not to offset EB-5 Integrity
Fund because it is a relatively new revenue source for USCIS and the
intended uses of the fund are narrow.\44\ In future rulemakings, DHS
may reevaluate this decision based on when it has more data or newer
estimates for the EB-5 Integrity Fund and Form I-956K. However, DHS
declines to make changes based on this comment.
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\43\ See section II.B of this preamble.
\44\ See sections II.B and III.E. of this preamble. See also 90
FR 48516, 48530-48534.
---------------------------------------------------------------------------
Comment: A commenter stated that the adjudicative process for Form
I-956K is largely unknown to the EB-5 industry. They noted that DHS has
authority to use not less than one third of the EB-5 Integrity Fund
balance for foreign investigations. They questioned whether any foreign
investigations occurred and encouraged USCIS to begin investigating
third-party promoters abroad. They stated this will ensure greater
program compliance and accountability while not increasing the fee for
Form I-956K.
Response: Rulemaking is unnecessary to address procedures for
foreign investigations, but DHS will consider this recommendation and
take sub-regulatory action as needed.
4. New EB-5 Technology Fee
Comment: One commenter stated that before beginning to charge this
new technology fee, it is critical that USCIS provide the public with
its roadmap for the technology improvements that will transition the
agency to a modern electronic process. They listed several information
technology modernization projects which the revenue could fund. The
commenter stated there should be clear milestones, such as system
implementation dates and performance benchmarks, so that the agency can
be held accountable by Congress and other stakeholders.
Response: DHS appreciates the comment regarding the need for
transparency and accountability in the implementation of technology
improvements funded by the new technology fee. The technology fee is
authorized by statute to support enhancements to USCIS information
systems, including the transition to electronic processing. DHS is
committed to providing updates on major technology initiatives and will
continue to communicate progress, milestones, and performance
benchmarks as these improvements are developed and implemented. DHS
will also ensure that Congress and stakeholders are informed about the
use of technology fee revenue and the resulting benefits to applicants
and program administration.
However, DHS wishes to set realistic expectations for EB-5
Technology Fee revenue. For example, using the volume forecasts for
this final rule, USCIS expects that it will collect less than a million
dollars a year in EB-5 Technology fee revenue.\45\ Less than a million
dollars each year may not be sufficient funding for the projects listed
by the commenter. As such, USCIS will necessarily need to continue
using other IEFA funding to cover most of its information technology
costs, including those for the EB-5 program.
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\45\ The EB-5 Technology Fee applies to some, but not all
filings of Forms I-526 and I-526E. See section III.D. of this
preamble for more information. If all Forms I-526 and I-526E filings
paid the EB-5 Technology Fee, then the average annual revenue for FY
2026/2027 would be $660,900. See section III.C.1. for the volume
forecasts in this final rule. Calculation: (312 + 8,500) *$75 =
$660,900.
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F. EB-5 Integrity Fund Fees and Penalties
1. Comments on the Integrity Fund and Codification of Nonpayment
Penalties (e.g., Monetary Penalties for Late Payment, Termination for
Failure To Pay Within 90 Days of Due Date)
Comment: One commenter recommended that DHS provide exceptions to
the timeframes for levying penalty fees for late payment of the
Integrity Fund fee, such as for public exigencies. Other commenters
mentioned concerns about the penalties for non-compliance, such as late
integrity fee payments and termination of regional centers after 90
days. Commenters stated these could impact immigration status of
investors, disrupt multi-million dollar projects, and hurt local
economies. Commenters also stated concerns of additional regulatory
burden from more audits, site visits, and compliance checks.
Response: The penalties, and the timeframes for imposing those
penalties, are set by statute. The statute does not provide for
waivers, exceptions or exemptions. The statute states that each
regional center must pay the Integrity Fund fee every year on October
1. INA sec. 203(b)(5)(J)(iv), 8 U.S.C. 1153(b)(5)(J)(iv), enumerates
the following:
(iv) FAILURE TO PAY FEE.--The Secretary of Homeland Security
shall--
(I) impose a reasonable penalty, which shall be deposited into the
Fund, if any regional center does not pay the
[[Page 61961]]
fee required under clause (ii) within 30 days after the date on which
such fee is due; and
(II) terminate the designation of any regional center that does not
pay the fee required under clause (ii) within 90 days after the date on
which such fee is due.
Comment: One commenter requested confirmation, for investors whose
regional center was terminated for failure to pay the EB-5 Integrity
Fund fee, that re-affiliation with a new regional center is not
required if the project has already created the required number of
jobs.
Response: Whether an investor must reaffiliate with another
regional center to retain eligibility under INA sec. 203(b)(5)(M), 8
U.S.C. 1153(b)(5)(M), will depend on the facts and circumstances
specific to their particular case. As explained in current USCIS
policy, in general, pre-EB-5 Reform Act investors may remain eligible
if their project is complete or will be completed in accordance with
the comprehensive business plan, with sufficient job creation for all
investors, and the investor's capital has been and will be sustained
through the requisite two-year sustainment period of their conditional
residency. In such cases, officers may plausibly determine that a pre-
EB-5 Reform Act investor associated with the terminated regional center
is still eligible for classification as an immigrant investor, even
without the need to reassociate with another approved regional center
or make a qualifying investment in another new commercial enterprise.
Also, USCIS generally will not consider such termination a material
change that affects continued eligibility.
In general, post-EB-5 Reform Act investors may continue to be
eligible if their capital remained invested for at least 2 years after
being placed at risk under applicable requirements and satisfied the
job creation requirement before termination or debarment. In such
cases, officers may plausibly determine that such post-EB-5 Reform Act
investors are still eligible for classification as an immigrant
investor, even though the regional center was terminated and without
the need to reassociate with another approved regional center or make a
qualifying investment in another NCE.\46\
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\46\ USCIS, EB-5 Questions and Answers, <a href="https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-questions-and-answers">https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-questions-and-answers</a> (last
reviewed/updated Feb. 25, 2026).
---------------------------------------------------------------------------
Comment: A commenter stated that USCIS should allow regional
centers to self-report the number of investors to calculate the amount
due for Integrity Fund fees. They stated the proposed method to
calculate investors does not account for withdrawn Form I-526E
applications.
Response: DHS considered the suggestion to allow Regional Centers
to self-report investor numbers for Integrity Fund fee calculations,
but notes that accurate reporting of investor numbers is essential for
program integrity and compliance. The annual fee, as established in the
RIA, is $20,000 for each such Regional Center, except for those with 20
or fewer total investors in its new commercial enterprises in the
preceding fiscal year from October 1-September 30, in which case the
annual fee is $10,000.
For application of the different fee amounts, USCIS interprets the
phrase ``20 or fewer total investors in the preceding fiscal year in
its new commercial enterprises'' to mean the total number of EB-5
investors who have invested, or are actively in the process of
investing, in a Regional Center's NCE in any given fiscal year
beginning at the point of an investor filing a petition for
classification as an EB-5 investor up until the point of an investor
filing a petition for removal of conditions.
USCIS officers retain discretion to evaluate the Integrity Fund fee
due and the number of investors on a case-by-case basis, accounting for
any other facts or evidence in the record in the totality of the
circumstances, including any evidence provided by a regional center
that believes it has greater or fewer total investors. DHS makes no
changes to the final rule in response to this comment.
G. Statutory and Regulatory Requirements
1. Administrative Procedure Act (APA) (e.g., Notice/Adequacy of the 60-
Day Comment Period, Requests to Extend, Reliance Interests, Rulemaking
Process, ``Arbitrary and Capricious'')
Comment: Commenters provided the following comments regarding the
APA:
<bullet> Stay the rule's effective date and open a minimum 60-day
notice-and-comment period.
<bullet> The proposal fails to adequately consider reliance
interests and downstream economic harms, rendering it arbitrary and
capricious.
<bullet> This rule invokes or effectively relies on the APA's
``good cause'' exception to notice-and-comment and/or to the 30-day
delayed effective date without a narrowly tailored, record-supported
justification.
Response: DHS disagrees with the commenters' concerns regarding the
rule's compliance with the APA. The notice-and-comment period,
consideration of reliance interests, direct economic impacts on small
entities, and the justification for the effective date of the rule all
comply with the APA and relevant case law. DHS provided the public with
notice of the proposed fees and allowed for a comment period, complying
with the requirements of the APA. Further, the 60-day comment period
was sufficient time for interested parties and stakeholders to submit
feedback on all aspects of the proposed rule, including the potential
economic impacts and reliance interests. The commenter did not provide
details of what actions they have taken or costs they have incurred as
a result of their reliance on USCIS not implementing a new fee schedule
as required by the 2022 RIA. DHS believes that passage of the statute,
partial implementation of the law through the EB-5 Integrity Fund Fee,
and the proposed rule, have provided sufficient notice for affected
parties to not be surprised by the new fees and time to adjust their
businesses practices accordingly.
2. Comments on the Regulatory Impact Analysis (RIA) (E.O.s 12866 and
13563)
Comment: One commenter stated that the economic analysis is
inadequate because DHS/USCIS says the $47 million loss due to decreased
fees will be offset by finding savings elsewhere, without detailing
where that will be. There is no discussion in the rule about the impact
on the current fee structure, and the assumptions (and commitments)
made in the most recent fee rule. There is also no discussion of the
impact the decrease in fees here would have on a future fee study or
rule. The commenter also notes that some of the figures in the analysis
are several years old, and there is no discussion of the impact of this
rule on USCIS' overall fiscal picture. Another commenter requested that
USCIS publish the rule's Executive Order 12866 significance
determination and underlying economic analysis and confirm OIRA review.
Response: DHS disagrees that the economic analysis is inadequate.
Earlier in this preamble DHS addressed the commenter's concerns
regarding potential negative effects to USCIS by lowering certain fees.
See section IV.B.2.c. While DHS estimates the net impact to a
particular fee change directly, it does not generally suggest or
determine how the overall financial situation of the agency will be
impacted. USCIS policies and workloads are constantly evolving,
requiring resource
[[Page 61962]]
shifts, and operational changes, and the time required to engage in
rulemaking makes it impossible to issue a fee rule that is totally
current on all aspects that could impact fees and costs. However, DHS
performs fee studies generally, as it did for this rule, using the best
and most reliable data available, to implement new fees in a manner
that improves or maintains its overall level of USCIS service.
Regarding data age, DHS updated the data where possible, relying on a
consistent analytical approach. Also, the Office of Management and
Budget (OMB) reviewed the rule (concluding on Sep. 25, 2025) and
determined that this rule is a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, although it does not meet the
criteria for economic significance under section 3(f)(1).
3. Regulatory Flexibility Act (e.g., Initial Regulatory Flexibility
Analysis, Small Entities)
Comment: One commenter stated that the rule omits, or provides only
a conclusory, Regulatory Flexibility Act analysis despite direct
impacts on hundreds of small entities (RCs, NCEs, and related small
businesses) and fails to consider less burdensome alternatives as
required by 5 U.S.C. 603-604. Another commenter suggested that USCIS
prepare and publish an Initial Regulatory Flexibility Analysis (IRFA)
or, if invoking 5 U.S.C. 605(b), provide a detailed factual basis
supporting any certification, and consider significant alternatives to
minimize small-entity impacts.
Response: DHS conducted and published an initial regulatory
flexibility analyses (IRFA) \47\ and determined that most businesses
involved with the EB-5 program would be small and sustains that
determination in this final rule. While DHS recognizes that higher fees
may present challenges for some applicants, particularly smaller
investors, the fees being finalized reflect the actual costs of
adjudication, fraud prevention, compliance activities, and
administration of the program. Setting fees outside cost-recovery
levels could compromise USCIS' ability to provide adequate services and
maintain program integrity. DHS considered alternatives, including
tiered or transitional fee structures, but determined that a uniform
fee schedule presents the most effective way to distribute costs and
avoid administrative complexity.
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\47\ See 90 FR 48516, 48541-48548.
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DHS remains committed to monitoring the impact of fee changes on
program participation and will continue to evaluate whether future
adjustments or alternative approaches may be warranted. Currently, the
fee schedule reflects DHS's best effort to balance access,
affordability, and operational needs, consistent with statutory
requirements.
4. Paperwork Reduction Act (PRA) (e.g., New Form I-527, Revised Form I-
829)
Comment: One commenter stated that this rule potentially introduces
or revises information collection requirements without clear Paperwork
Reduction Act (PRA) compliance (OMB control numbers, burden estimates,
and the required 60/30-day public notices). They asked that USCIS
identify and, if needed, seek OMB approval for any new or revised
information collections under the PRA, with full burden estimates and
public notice.
Response: DHS confirms that it has complied with all requirements
of the PRA in connection with the creation of new information
collections or revisions to existing information collections. This rule
includes a revision to Form I-829 and the creation of a new information
collection Form I-527. USCIS previously consolidated all information
related to form fees, fee exemptions, and how to submit fee payments
into Form G-1055, Fee Schedule, and removed them from the specific form
instructions. See 88 FR 402 (Jan. 4, 2023); 89 FR 6194 (Jan. 31, 2024).
See USCIS Form G-1055, Fee Schedule, for the fees associated with I-
526, I-526E, I-527, I-829, I-956, I-956F, I-956G, I-956H, and I-956K.
The notice of proposed rulemaking publication included the affected
information collections, Form I-829 and associated instructions, Form
I-527 and associated instructions, and Form G-1055, USCIS Fee Schedule,
found on the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
See 90 FR 48516 (Oct. 23, 2025). The OMB Control Numbers and total
average burden per response for the new or revised information
collections can be found in the information collection instrument with
instructions on the Federal eRulemaking Portal. In accordance with 5
CFR 1320.8, the agency need not separately seek public comment for any
proposed collection of information contained in a proposed rule to be
reviewed under 5 CFR 1320.11, if the agency provides notice and comment
through the notice of proposed rulemaking for the proposed rule. In
accordance with 5 CFR 1320.11, the revised and new information
collections contained in proposed rule published for public comment in
the Federal Register were submitted to OMB for review. In accordance
with 5 CFR 1320.12, the revised and new information collections
contained in the final rule will be submitted to OMB for review and
approval. Therefore, no changes are made in response to these comments.
Comment: USCIS should undertake a separate Notice and Comment
rulemaking when publishing Form I-527 to allow for public comment on
the form before it is final.
Response: DHS will not publish a separate public notice specific to
the new Form I-527; please see prior response for additional
information on compliance with the PRA requirements. However, the
rulemaking process includes public input on the form, and DHS will
consider additional opportunities for stakeholder engagement as the
form is finalized.
H. Out of Scope Comments
Comment: Commenters submitted several comments that are not related
to fees or relevant to any changes proposed in the proposed rule. Thus,
they are outside the scope of the rulemaking. The commenters stated or
shared:
<bullet> Displeasure in the number of immigrant visas being
granted.
<bullet> Each person that enters the United States should pay $10
million.
<bullet> DHS should raise all fees by 2000% to deter immigrants.
<bullet> A copy of an employment authorization document with no
additional context.
<bullet> A customer service inquiry related to Temporary Protected
Status.
<bullet> Requests to amend or file petitions while providing
authorization for DHS to enact regulations.
Response: DHS fully considered the comments responsive to the rule
and whether those suggestions could be adopted. The comments above are
beyond the scope of provisions considered in the published proposed
rule. Because these comments are not relevant to the fee adjustments or
regulatory changes that were proposed, DHS is not responding to them in
this final rule.
V. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14192 (Unleashing
Prosperity Through Deregulation)
E.O.s 12866 and 13563 direct agencies to assess the costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize
[[Page 61963]]
net benefits. E.O. 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. E.O. 14192 (Unleashing Prosperity Through
Deregulation) directs agencies to significantly reduce the private
expenditures required to comply with Federal regulations and provides
that ``any new incremental costs associated with new regulations shall,
to the extent permitted by law, be offset by the elimination of
existing costs associated with at least 10 prior regulations.'' The
Office of Management and Budget (OMB) has designated this rule a
``significant regulatory action'' under section 3(f) of E.O. 12866,
although not economically significant under section 3(f)(1).
Accordingly, the rule has been reviewed by the Office of Management
and Budget. This rule is not an E.O. 14192 regulatory action because it
is being issued with respect to an immigration-related function of the
United States. The rule's primary direct purpose is to implement or
interpret the immigration laws of the United States (as described in
INA 101(a)(17), 8 U.S.C. 1101(a)(17)) or any other function performed
by the U.S. Federal Government with respect to aliens. See OMB
Memorandum M-25-20, ``Guidance Implementing Section 3 of Executive
Order 14192, titled `Unleashing Prosperity Through Deregulation'''
(Mar. 26, 2025).
1. Summary
The Department is finalizing immigration benefit request fees
charged by USCIS for the Employment-based Immigration, Fifth Preference
(EB-5). The fees are set at a level that USCIS has determined would
enable it to recover the costs of administering the EB-5 program, allow
it to attain the processing time goals outlined in the law and to
ensure there are internal procedures and controls in place to try to
maximize the likelihood that the statutory goals are met. It will also
make improvements to the information technology systems used by DHS to
administer the EB-5 program. This rule also codifies elements of the
EB-5 Reform Act in regulations, including the establishment of Form I-
527. The fee schedule DHS is finalizing will impact approximately
16,600 EB-5 program filings annually across nine existing forms and one
new form. For the existing forms the collective fees will increase by
about 70.7 percent, or by about $2,945.90 per form.\48\ DHS estimates
that the 10-year (FY 2026 through FY 2035) and annualized monetized
total impacts will be about $496.6 million and $49.7 million, in order,
in undiscounted terms. At a 3 percent discount rate, the figures would
be about $423.6 million and $49.7 million, in order, and at a 7 percent
discount rate, the figures would be about $348.8 million and $49.7
million. The impacts are summarized in Table 10, in which population
figures reflect annualized averages over the 10-year period of analysis
and the monetized figures reflect the average annualized equivalence
discounted at 7 percent.
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\48\ See V.A.2.b--Monetized Impact Estimates, Table 12.
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In addition to the impacts summarized in Table 10, and as required
by OMB Circular A-4, DHS presents the accounting statement showing the
anticipated costs and benefits associated with this final
regulation.\50\
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2. Economic Impacts
a. Summary of Changes From the NPRM
There are two substantive changes that DHS is making in this final
rule pertinent to the benefit-cost analysis as it applied to the NPRM.
First, the fee impacts being finalized are based on a change from the
EB-5 fees that became effective with the United States District Court
for the District of Colorado decision in Moody, which is discussed in
this preamble. Second, there have been recent revisions to the form
volume projections, and those updates are included, under FY 2026 and
FY 2027 projections. DHS is making two additional adjustments in this
final rule.
[[Page 61967]]
First, in the NPRM, DHS accounted for an amendment Form I-526E under a
small annual volume projection of 105 filings per year. DHS has
received only a few such filings and expects a very small future
volume, potentially close to zero. As such, DHS does not include a
separate line item in the cost table for the I-562E amendment and
initial form. Second, for purposes of this rulemaking the time burden
applicable to the form I-829 is not set to change.
b. Monetized Impact Estimates
In introducing the analysis, DHS presents in Table 12 information
captured from the preamble (Tables 1-3) to show the current and
projected fees for the EB-5 program forms. As shown, we calculate
weighting factor based on the volume for each form relative to the
annualized total to generate a weighted average change in fees (which
are accounted for as transfers), exclusive of Form I-527, which this
rule is introducing. The volumes shown represent the average annual
forecasts based on the USCIS Volume Projections Committee (VPC). The
VPC facilitates workload and fee projection data, stakeholder
collaboration, communication, and coordination of critical business
decisions about projected workload. This intra-agency group provides a
forum for making enterprise-wide decisions about projected workload
supported by input from knowledgeable subject matter experts from
within USCIS and, in some cases, data from other governmental agencies.
The VPC predicts USCIS annual workload volumes using historical and
recent volume trends, statistical forecasts, and subject-matter
expertise from various USCIS directorates and program offices,
including the IPO, USCIS service centers, the National Benefits Center,
and regional, district, and field offices. USCIS produced most of the
estimates in this final rule during the meetings in June 2025 to
estimate the FY 2026 and beyond. USCIS uses VPC estimates to determine
staffing levels, budget for upcoming years, and estimate future
revenue. If the VPC did not forecast a workload required for this rule,
like Form I-527, then USCIS relied on SME estimates.
[GRAPHIC] [TIFF OMITTED] TR30SE26.030
As shown in the final columns of Table 12, based on the projected
volumes in Table 3, and finalized fees, the fees increase by $2,945.9
or by 70.7 percent.
Table 13 builds the economic impacts applicable to the final fee
changes for existing forms. The final columns report the annual total
across all impacted forms, while the final rows report the 10-year
average annual figures for each form, in order. While there is a single
Form I-956, we have included two columns to account for initial filings
(``i'') and amendments (``a''). The reason for parsing them out is that
while their current fee is the same ($17,795) their final fees will be
different ($44,115 and $9,835, in order). It is noted that the new Form
I-527, Amendment to Legacy Form I-526, with a small projected annual
volume of 20, is not included in Table 13. This form will incur a
different accounting protocol from the other forms and is treated in a
separate module. Specifically, the fee impacts associated with this
form will be accounted for as a cost while the others will constitute
transfers. Table 13 presents the projected annual volumes as well as
the filing fees at the current and final levels. Table 13 is set up
this way because the volumes are projected to be the same each FY, and
for brevity each actual year is therefore not shown. The table also
presents the impact as the difference between current and future filing
fees, and the final column shows the 10-year totals per form.
[[Page 61968]]
[GRAPHIC] [TIFF OMITTED] TR30SE26.031
As Table 13 reports, based on the volume projections, at current
fee rates the costs associated with filing forms for the EB-5 program
would be $566.28 million over 10 years or $56.63 million annually in
undiscounted terms. Based on the final fees, the filing costs will be
$1,054.83 million over 10 years or $105.48 million annually in
undiscounted terms. The impact (difference) would constitute an
increase of $488.55 million over 10 years or an increase of $48.85
million on an annual basis (Table 13). The impacts attributable to the
final fee changes will represent a net increase in transfers from
requestors to DHS.
c. Costs of the Final Rule
In addition to transfer-impacts pertinent to form related fees,
several impacts are accounted for as costs. DHS determines that there
will be minor time burden changes applicable to the existing EB-5
Program forms due to this rule. To estimate the opportunity cost of
time impacts, we need to rely on an hourly wage bound. This is
difficult because EB-5 entities can involve complex business
activities. DHS does not have salient information on the jobs the
individual filers are involved in, but we assess that most individuals
involved in the program investments are primarily involved (for
regional centers, NCEs, and JCEs) in the business of arranging loans
and financing and managing these efforts applicable to business plans.
Therefore, DHS selected 20 occupations from the Bureau of Labor
Statistics (BLS) Standard Occupational Codes (SOC) that we think
reasonably capture the individuals involved in these activities. These
SOC titles and associated terms mean hourly wage for the detailed
industries are reported in Table 14.
[[Page 61969]]
[GRAPHIC] [TIFF OMITTED] TR30SE26.032
The minimum, mid-point, and maximum of the above range are $41.58,
$64.72,\52\ and $87.86, in order. However, working recursively, the
resulting monetized impacts are only very slightly affected by the wage
range and thus, for brevity we will rely on the midpoint to base our
estimates. DHS accounts for employee benefits by calculating a
benefits-burden applicable to the most recent BLS report detailing the
average employer costs for employee compensation for all civilian
workers in major occupational groups and industries. The burden to
compensation from benefits is 45 percent.\53\ DHS will rely on this
burden to estimate the full costs incurred by new employees, including
employee wages and salaries and the full cost of benefits such as paid
leave, insurance, retirement, and other benefits. With a benefits-
burden multiple of 1.45, hourly compensation is $93.84.\54\
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\52\ This midpoint obtained by adding the minimum and maximum
value and dividing by two; it is proximate to the true mean of
$61.90. The wage data obtained from BLS, BLS, Occupational
Employment Statistics, ``May 2024 Occupational Employment and Wage
Estimates, United States,'' <a href="https://www.bls.gov/news.release/archives/ocwage_04022025.htm">https://www.bls.gov/news.release/archives/ocwage_04022025.htm</a> (last visited July 1, 2025).
\53\ See BLS, Economic News Release, ``Employer Costs for
Employee Compensation by Ownership--June 2024,'' Table 1. Employer
costs for employer compensation by ownership: <a href="https://www.bls.gov/news.release/archives/ecec_09102024.htm">https://www.bls.gov/news.release/archives/ecec_09102024.htm</a> (last visited Nov. 4, 2025).
The benefits-to-wage multiplier is calculated as follows: (Total
Employee Compensation per hour)/(Wages and Salaries per hour) =
$46.21/$31.80.
\54\ Calculation: Midpoint hourly wage of $64.72 x multiplier of
1.45 = $93.84.
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[[Page 61970]]
The current, projected, and change in the time burdens (in hours)
are provided in Table 15.
[GRAPHIC] [TIFF OMITTED] TR30SE26.033
To obtain the impact (opportunity cost) reported in Column E, the
volume is multiplied by the change in the burden and by the mid-point
compensation ($93.84). Columns F report the annual and 10-year impacts
per form, while the bottom rows provide the totals across forms. Based
on the information provided, the annual total cost will be $540,004.7
and about $5.4 million over ten years. In addition to the totals, a
weight factor is provided in the final column (G), which reflects the
weight factor perform (see Table 12) multiplied by the projected burden
change (column D table 15). The weight factors sum to 0.347 hours,
which equates to about 20.8 minutes.
The new Form I-527 impacts would accrue to the direct cost of
filing plus the opportunity costs associated with the time burden of
filing. The final fee is $10,330 and the time burden is estimated at
1.44 hours, which, based on the burdened mid-point compensation
(discussed above of $93.84) yields a time-related impact of $135.14 per
submission. Adding the two components amounts to $10,465.14 per filing,
which, at the projected annual volume of 20, generates an impact of
$209,000 annually and $2.09 million over 10 years. For the few cases in
which an immigrant investor's spouse and children file separate Form I-
829 petitions when they are not included in the Form I-829 filed by the
immigrant investor, as stipulated in the preamble, the final revisions
to the existing regulations would not impose any additional biometric,
travel, or associated opportunity costs. The only costs expected from
the rule would be the separate filing fee and associated opportunity
cost. The final fee for Form I-829 is $5,000 and the time burden is
3.62 hours. For the dependents we would use a lower wage than was
utilized for investors. Without salient information concerning the
wages these applicable filers would earn, we will assume they are
working at various levels and will rely on the current average wage
across all occupations, which is currently $32.66, and is $47.36 when
burdened for benefits.\55\ Each filer would face a time burden cost of
$171.44, which when added to the filing fee would be $5,171.44. Based
on 11 annualized filings' average over 9 years (FY 2015 through FY
2023), the monetized impact that will accrue to the individual Form I-
829 filers would be $56,885.88 annually, or about $.57 million over 10
years.
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\55\ U.S. DOL, BLS, Occupational Employment and Wage Statistics,
National Occupational Employment and Wage Estimates, All
Occupations, May 2024, available at: <a href="https://www.bls.gov/news.release/archives/ocwage_04022025.htm">https://www.bls.gov/news.release/archives/ocwage_04022025.htm</a>. (Jul. 8, 2024).
Calculation: $32.66 x multiplier of 1.45 = $47.36.
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d. Total Monetized Impacts
We can now compile the monetized impacts of the rule based on the
impacts for which we can reasonably develop a quantified estimate. The
impacts
[[Page 61971]]
associated with the existing forms' fee changes are categorized as
transfers from requestors to DHS. They are accounted for as transfers
because a filing fee currently exists (including the two forms in which
it is currently $0) and the requestor expects to recoup a direct
benefit from filing. The impacts associated with the new Form I-527 are
classified as costs, as are the changes in the forms' burdens and
filings applicable to the Form I-829, as discussed earlier. In Table 16
the transfers and costs are listed individually since they are
categorized differently under the OMB Circular A-4 framework. The
transfers, payments made by EB-5 requestors when filing forms to DHS
(IEFA), reflect the fee changes finalized. The costs column comprises
the annual impacts, mainly to EB-5 requesters, accruing to the new Form
I-527 and the small number of separate I-829 dependent filers, as well
as the forms' burdens. The monetized impacts are presented in Table 16
in order of terms undiscounted, then discounted at 3 and 7 percent, in
order.\56\ In Table 16 each FY is shown, since the discounted terms for
each year are not the same.
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\56\ See OMB, Circular A-4, ``Regulatory Analysis,'' <a href="https://www.whitehouse.gov/wp-content/uploads/2025/08/CircularA-4.pdf">https://www.whitehouse.gov/wp-content/uploads/2025/08/CircularA-4.pdf</a>.
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[GRAPHIC] [TIFF OMITTED] TR30SE26.035
[[Page 61974]]
[GRAPHIC] [TIFF OMITTED] TR30SE26.036
e. Unquantified Impacts
There are some other impacts that DHS has evaluated applicable to
the rule, and while these cannot be monetized, DHS offers a qualitative
discussion concerning them. Foremost, there are likely to be
familiarization costs associated with reading and understanding the
rule. The costs of familiarization would accrue to the opportunity
costs of the time embodied, which would constitute the number of hours
spent on familiarization multiplied by the hourly compensation of the
reviewer(s). DHS does not know who (in terms of what occupation) would
review the rule but will attribute the costs to lawyers trained in
reading and interpreting the rule's changes. The average hourly
compensation would be $87.86, which, at a benefits-burden multiple of
1.45, is $127.40 per hour.\57\ This reflects the cost of an in-house
attorney. For outsourced attorneys, we utilize a multiplier of 2.5,
which yields an hourly rate of $219.65.\58\ By relying on the earnings
of lawyers, which are substantially higher than that of most
occupations, DHS is being liberal in its estimates. DHS does not know
how much time would be expended on such familiarization.
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\57\ Calculation: The average hourly wage for Lawyers of $87.86
x the benefits burden multiplier of 1.45 = $127.407. The wage
reflects the May 2024 data published by the BLS, cited in Table 14.
\58\ Calculation: The average hourly wage for Lawyers of $87.86
x the benefits burden multiplier of 2.5 = $219.65. See ICE, Final
Small Entity Impact Analysis, ``Safe-Harbor Procedures for Employers
Who Receive a No-Match Letter'' for the basis of the multiplier of
2.5 to convert in-house attorney wages to the cost of outsourced
attorney based on information received in public comment to that
rule: <a href="https://www.regulations.gov/document/ICEB-2006-0004-0922">https://www.regulations.gov/document/ICEB-2006-0004-0922</a>, p.
G-4.
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The EB-5 Reform Act authorizes graduated sanctions for regional
centers that fail to submit an annual statement or that commit certain
violations. Considering this authorization, DHS will impose the
following penalties for paying the Integrity Fund fee late:
<bullet> Ten percent of the required integrity fee (e.g., 10
percent of $10,000 or $20,000, subject to adjusting such required
amounts for inflation) \59\ for a regional center that pays its fees on
day 31 through and including day 60 after the due date.
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\59\ DHS is not accounting for the integrity fund payments for
regional centers and regional center investors because they were
enacted in the FY 2022 EB-5 Reform Act and also a Federal Register
notice (88 FR 13141 (Mar. 2, 2023)).
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<bullet> Twenty percent of the required integrity fee for a
regional center if their fee is paid on day 61 through and including
day 90 after it is due.
<bullet> Terminate a regional center designation if it fails to pay
the fee within 90 days of the date on which such fee is due.
In determining the final penalties, as discussed in the preamble,
DHS believed that 10 percent was a reasonable starting point in setting
a penalty. DHS also considered whether the dollar amount itself was
reasonable. In this case, the 10 percent would amount to $1,000 or
$2,000 depending on the regional center, which DHS believes is a
reasonable late charge for failing to pay the fee after 30 days. The 20
percent would amount to $2,000 or $4,000 depending on the regional
center (based on the number of investors), which DHS believes is a
reasonable late charge for failing to pay the fee after 60 days.
The goal of the penalties is to effectively deter noncompliance.
DHS believes that the penalties would be sufficient to encourage
payment and ensure timely collection of the Integrity Fund fees, while
not being so large as to be punitive or financially damaging. DHS
cannot make an estimate of how many entities would pay penalties or how
much they would pay.
This final rule will generate benefits to the public. The set fees
will support the level that would enable DHS to recover the costs of
administering the EB-5 program; allow the program to promote U.S.
economic growth through job creation and capital investment by
immigrant investors as it was originally intended; enable USCIS to
attain the statutory processing time goals; and ensure there would be
internal procedures/controls in place within the program office to
maximize the likelihood that the statutory goals will be met. It will
make improvements to the information technology systems used by DHS to
administer the EB-5 program.
[[Page 61975]]
B. Regulatory Flexibility Act (RFA)
1. Final Regulatory Flexibility Analysis (FRFA)
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 and 602,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121, tit. II, 110 Stat. 847 (5 U.S.C. 601 note)),
requires Federal agencies to consider the potential impact of
regulations on small businesses, small governmental jurisdictions, and
small organizations during the development of their rules. The term
``small entities'' comprises small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000.\60\
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\60\ A small business is defined as any independently owned and
operated business not dominant in its field that qualifies as a
small business per the Small Business Act, 15 U.S.C. 632.
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DHS reviewed the proposed rule and this final rule as required by
the RFA. The fee schedule DHS is finalizing will impact approximately
16,600 EB-5 program filings annually across nine current forms and one
new form. For the nine current forms the collective fees will increase
from their current level by about 70.7 percent, or by about $2,945.90
per form.\61\ In addition there are costs associated with certain
filings and form burdens to requestors. While the forms related to
immigration benefits mainly apply to individuals, the Technology Fee
and the Integrity Fund Fees and Penalties directly impact entities.
There are four types of entities that were evaluated in terms of the
RFA as it pertains to the EB-5 program and the rule: (1) regional
centers; (2) NCEs; (3) JCEs; and (4) investors. DHS has determined that
the investors in the program are individuals who willingly choose to
invest their capital in the program and are not considered small
entities for purposes of the RFA. An ``individual'' is not defined by
the RFA as a small entity and costs to an individual from a rule are
not considered for RFA purposes.\62\ As a result of this determination,
individuals are not covered in this Final Regulatory Flexibility
Analysis (FRFA), and DHS focuses this analysis on the business
components pertinent to the EB-5 program directly involved in its
investments.
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\61\ See V.A.2.b--Monetized Impact Estimates, Table 12.
\62\ An investor who wishes to immigrate to the United States
through the EB-5 program must file an Immigrant Petition by Alien
Investor (Form I-526). Individuals who file Form I-526 petitions
apply for immigration benefits on their own behalf and thus do not
meet the definition of a small entity.
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a. A statement of the need for, and objectives of, the rule.
As is required by EB-5 Reform Act, DHS conducted an EB-5-specific
fee study. The determination from the study is that the fees being
finalized as applicable to the EB-5 program will be set at a level that
the Department has determined would enable it to: recover the costs of
administering the EB-5 program; allow the Agency to attain the
processing times goals; and ensure there are internal procedures/
controls in place within the program office to maximize the likelihood
that the statutory goals are met. It is intended, further, to make
improvements to the information technology systems used by DHS to
administer the EB-5 program. The objective of this final rule is for
DHS to adjust EB-5 benefit request fees to meet the requirements
provided in the EB-5 Reform Act and adequately fund the cost of
administering the EB-5 program. DHS intends to meet this objective by:
(i) setting fees according to the schedule presented in the preamble;
(ii) establishing the USCIS EB-5 Technology Fee; and (iii) codifying
EB-5 Integrity Fund Fees and Penalties.
In accordance with the EB-5 Reform Act, DHS is finalizing the fees
to sufficiently recover the costs of providing such services, and
attaining the goal of completing adjudications, on average, not later
than:
(1) 180 days after receiving a regional center application or
application for investment in a new commercial enterprise (NCE); \63\
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\63\ A ``new commercial enterprise'' is ``any for-profit
organization formed in the United States for the ongoing conduct of
lawful business . . . that receives, or is established to receive,
capital investment from [employment-based immigrant] investors.''
INA sec. 203(b)(5)(D)(vi).
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(2) 90 days after receiving an application for investment in an NCE
that is located in a TEA; \64\
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\64\ A targeted employment area (TEA) is a rural area, or an
area designated by the Secretary of Homeland Security under INA sec.
203(b)(5)(B)(ii), 8 U.S.C. 1153(b)(5)(B)(ii) as a high unemployment
area. Public Law 117-103, Division BB, sec. 102(a)(4), 136 Stat.
1070, 1074 (2022).
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(3) 240 days after receiving an immigrant investor petition for
classification under section 203(b)(5)(E) of the Act or a petition to
remove conditions under section 216A of the Act; and
(4) 120 days after receiving an immigrant investor petition for
classification under section 203(b)(5)(E) of the Act with respect to an
investment in a TEA.
DHS finalizes this rule under the authority of the EB-5 Reform Act.
Among other things, the EB-5 Reform Act immediately repealed the former
authorizing statutory provisions for the Regional Center Program under
the Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act 1993, Public Law 102-395, 106 Stat.
1828, sec. 610, and added new authorizing provisions to the INA,
substantially reforming the Regional Center Program effective May 14,
2022. The reformed Regional Center Program is authorized through
September 30, 2027. This rule is also consistent with non-statutory
guidance on fees, the budget process, and Federal accounting
principles.\65\ DHS uses OMB Circular A-25 as guidance for determining
user fees for immigration benefit requests. DHS also follows the annual
guidance in OMB Circular A-11 if it requests appropriations to offset a
portion of IEFA costs. DHS used the ABC methodology supported in OMB
Circulars A-25 and A-11 to develop the final EB-5 program fee schedule.
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\65\ See OMB, Circular A-25, ``User Charges,'' 58 FR 38142 (July
15, 1993) (revising Federal policy guidance regarding fees assessed
by Federal agencies for Government services). See also Federal
Accounting Standards Advisory Board Handbook, Version 23,
``Statement of Federal Financial Accounting Standards 4: Managerial
Cost Accounting Standards and Concepts,'' SFFAS 4 (Sept. 2024),
<a href="http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf">http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf</a> (generally
describing cost accounting concepts and standards, and defining
``full cost'' to mean the sum of direct and indirect costs that
contribute to the output, including the costs of supporting services
provided by other segments and entities.); Id. at 49-66 (July 31,
1995). See also OMB, Circular A-11, ``Preparation, Submission, and
Execution of the Budget,'' sec. 20.7(d), (g) (June 29, 2018),
<a href="https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf">https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf</a>
(providing guidance on the FY 2020 budget and instructions on budget
execution, offsetting collections, and user fees).
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b. A statement of the significant issues raised by the public
comments in response to the IRFA, a statement of the assessment of the
agency of such issues, and a statement of any changes made in the rule
as a result of such comments.
A commenter stated that the rule omits, or provides only a
conclusory, Regulatory Flexibility Act analysis despite direct impacts
on hundreds of small entities (RCs, NCEs, and related small businesses)
and fails to consider less burdensome alternatives as required by 5
U.S.C. 603-604. Another commenter suggested that USCIS prepare and
publish an Initial Regulatory Flexibility Analysis (IRFA) or, if
invoking 5 U.S.C. 605(b), provide a detailed factual basis supporting
any certification, and consider significant alternatives to minimize
small-entity impacts.
[[Page 61976]]
DHS conducted and published an initial regulatory flexibility
analyses (IRFA) \66\ and determined that most businesses involved with
the EB-5 program would be small and sustains that determination in this
final rule. While DHS recognizes that higher fees may present
challenges for some applicants, particularly smaller investors, the
fees being finalized reflect the actual costs of adjudication, fraud
prevention, compliance activities, and administration of the program.
Setting fees outside cost-recovery levels could compromise USCIS'
ability to provide adequate services and maintain program integrity.
DHS considered alternatives, including tiered or transitional fee
structures, but determined that a uniform fee schedule presents the
most effective way to distribute costs and avoid administrative
complexity.
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\66\ See 90 FR 48516, pages 48541-48548.
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DHS will closely monitor the effects of fee changes on program
participation and will assess the need for future adjustments or
alternative approaches as warranted by changes in demand and
eligibility. The current fee schedule is designed to address
operational needs and statutory requirements, with recognition of the
uncertainty inherent in forecasting participation and revenue.
c. The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration in response
to the proposed rule, and a detailed statement of any change made to
the proposed rule in the final rule as a result of the comments.
Chief Counsel for Advocacy of the Small Business Administration did
not submit a comment relevant to this rulemaking.
d. A description of and an estimate of the number of small entities
to which the rule will apply or an explanation of why no such estimate
is available.
A person wishing to immigrate to the United States under the EB-5
program is required to file an Immigrant Petition by Standalone
Investor (Form I-526) or Immigrant Petition by Regional Center Investor
(Form I-526E), containing information about their investment. The
investment must be made into either an NCE within a designated regional
center in accordance with the regional center program or a standalone
NCE outside of the regional center program. A regional center is a
business entity in the United States designated by DHS based on a
proposal for the promotion of economic growth, including prospective
job creation and increased domestic capital investment. Regional
centers pool the capital of multiple investors together and arrange
them typically as investments in NCEs under their purview. The NCE may
create jobs directly (required for non-regional center investments) or
serve as a source of funding for separate JCEs (allowable for regional
center investments).
DHS cannot provide a precise assessment of the number of small
entities that could be impacted by the changes being finalized, nor can
the Department determine what such impacts might be to small entities
involved in the program or how they might respond to them.\67\ EB-5
investment and business structures tend to be complex and involve
multiple layers of business and financial activity. The Department has
limited information and data to support a small entity analysis.
However, based on available data, DHS can provide some criteria for an
initial assessment. As noted earlier, investors are not considered
under the purview of the RFA. Further, neither the amount of a typical
individual investment itself--which is the reduced minimum investment
amount of $800,000--nor the pool of total investment capital, is
appropriate to consider as income for this assessment.\68\ Therefore,
with these two caveats regional centers are assessed first, followed by
other EB-5 businesses associated with the program.
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\67\ See U.S. Citizenship and Immigration Services Fee Schedule
and Changes to Certain Other Immigration Benefit Request
Requirements, 89 FR 6194 (Jan. 31, 2024), See Section V.B. Final
Regulatory Flexibility Analysis, pages 6374-6376 explains the
difficulty of assessing regional centers and on how they are
structured in a variety of different ways, and can involve multiple
business and financial activities, some of which may play a direct
or indirect role in linking investor funds to new commercial
enterprise (NCEs), and job-creating projects or entities. Regional
centers also pose a challenge for analysis as the structure is often
complex and can involve many related business and financial
activities not directly involved with EB-5 activities. Regional
centers can be made up of several complex layers of business and
financial activities that focus on matching foreign investor funds
to development projects to capture above market return
differentials. DHS did consider the information provided by regional
center applicants as part of the Forms I-956; however, it does not
include adequate data to allow DHS to reliably identify the small
entity status of individual applicants. Although regional center
applicants typically report the NAICS codes associated with the
sectors they plan to direct investor funds toward, these codes do
not necessarily apply to the regional centers themselves. In
addition, information provided to DHS concerning regional centers
generally does not include regional center revenues or employment.
\68\ See Section C.I.--Regional Centers investments made in FY
2021 and at the reduced amount, of $800,000.
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i. Regional Centers
Based on the Department's thirty years of experience administering
the regional center program, it determined that regional centers earn
income through three primary mechanisms. In the next three paragraphs
DHS describes these three mechanisms.
First, regional centers charge investors an administrative fee
earmarked to expenses for marketing and operations pertinent to the
investment offering. The fee may also cover expenses related to
document preparation, legal oversight, and the economic analysis
utilized to model and estimate impacts and job creation. This
administrative fee is typically 10 percent of the individual investment
amount; hence DHS will rely on the typical percentage applied to most
expected investments of $800,000 to estimate an amount of $80,000 per
investor as a baseline.\69\ This reliance is justified on grounds that
almost all EB-5 activity has accrued to investments at the reduced
threshold--which qualify for the current reduced investment requirement
of $800,000 as opposed to the standard amount of $1,050,000.\70\ For
the period FY 2016 through FY 2025, there were 50,766 investments made
under regional centers, of which almost all, 50,703, were made at the
reduced amount.\71\
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\69\ The administrative fee is provided by regional centers in
information provided to DHS. Almost all charge 10 percent though
there are a few instances in which the fee is different. Information
on the fees are captured in several DHS datasets, including INFACT.
\70\ TEAs that qualify for the reduced amount apply to either
rural areas or to areas with unemployment rates at least 150 percent
of the national average. DHS makes the determination that an
investment qualifies for the reduced amount when the Investor files
the I-526 form. Investor petitions therefore need to contain
sufficient evidence that the location of the actual job creation
project meets the standards for the reduced investment threshold.
Additional information can be found at: <a href="https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/about-the-eb-5-visa-classification">https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/about-the-eb-5-visa-classification</a>. As a result of the 2022 Reform Act, the reduced
investment threshold also applies to infrastructure investments.
\71\ USCIS Office of Performance and Quality, C3, Electronic
Immigration System (ELIS), Infact Databases (initial data Aug. 2,
2023, updated Dec. 31, 2025, PAER19897). While there is no guarantee
that the same percentage will apply to the future, at this time the
Department does not have evidence to suggest it would be
substantially smaller. Some projects might not qualify for the high
unemployment threshold, but this does not necessarily mean that they
would not qualify for the reduced amount, as they could potentially
substitute into a rural or infrastructure project.
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Second, regional centers can also collect marketing, sales fees and
other charges and income owed to arrangements with their affiliated
NCEs and JCEs. Some regional centers provide information concerning
these activities in their business plans or amendments submitted to
DHS, but it is not required, and DHS does not have sufficient official
data on this source of income to
[[Page 61977]]
support an analysis. Third, regional centers can earn residual income.
They may capture income from the differential on the terms of the loans
they bundle and what is returned to investors. There may also be return
on investment in the forms of profit from the end-state economic
activity being conducted by the JCE. Some of this return on investment
may be split with other business entities involved, but DHS does not
have an adequate amount of data involving interest or profit accruing
to regional centers to assess this type of income.\72\ To conduct the
IRFA analysis, DHS utilized the 640 approved regional centers that were
in approval status at date the analysis was conducted (November 14,
2023).\73\ to run their respective regional center names in
subscription-based, open-source business data providers to obtain
income information on the regional centers. The search yielded 339
viable record matches that included an income figure and a North
American Industry Classification System (NAICS) code. The income data
point provided is deemed ``sales revenue'' and it is our assessment
that the income reported in these data is most likely revenue
attributed to sales, marketing, and other related charges involved, and
neither the administrative fees charged to investors nor profits on
loans or investment. While the sample size of 339 is more than
sufficient to satisfy a 95-percent level of confidence level and a 5-
percent confidence interval based on the population size (640), the
data pose a constraint. The NAICS codes are provided at the 6-digit
detailed industry level, but half the entities (173, or 51.0 percent)
reported code 999990, which benchmarks ``Non-Classifiable
Establishments.'' There is thus no SBA size standard to weigh against
for small entity status.\74\ As a result, there would only be 166
entities to support an analysis. To attempt to mitigate this
shortcoming, DHS extended the search query for regional centers
approved from FY 2016 through FY 2022. From the matches, DHS culled the
results to remove duplicates from the initial search result (339 of the
of the 640 current regional centers), plus records that did not include
both or either of a NAICS code (including non-classifiable) or a sales
figure. This cleansing process yielded 32 additional entities, which
when added to the 166 initial valid matches, resulted in 198 entities.
This figure is still below the optimal sample size of 241, but the
charge to precision is not overly debilitating, as the margin of error
is 5.8 percent instead of the desired 5.0 percent. As DHS will discuss,
out of necessity of the constraints faced, the assessment is conducted
along several different and unconventional paths. Hence, Table 17
presents metrics (in terms of the income alone from the web-based data)
for both the ``full'' sample group (339 currently approved regional
centers that are both classifiable and non-classifiable plus the 32
records obtained in the ancillary search) as well as the ``restricted''
(classifiable-only) group.
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\72\ Another reason that it is difficult to assess income to
regional centers from downstream projects, is that the affiliated
NCE could be set up as limited partnership, and the regional center
loan income accrues to a general partner that may not be the
regional center itself. Stated differently, there can be a degree of
separation in linking the regional center and its residual income.
\73\ USCIS, ``Approved EB-5 Immigrant Investor Regional
Centers,'' <a href="https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor-regional-centers/approved-eb-5-immigrant-investor-regional-centers">https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor-regional-centers/approved-eb-5-immigrant-investor-regional-centers</a> (last updated Feb. 13, 2025).
\74\ In addition to the NAICS code and concomitant industry, the
data providers also can provide a ``business description'' based on
their assessment of the business. For the non-classifiable entities,
there was no additional information provided that could be useful in
making an industry inference.
[GRAPHIC] [TIFF OMITTED] TR30SE26.037
The large differences captured as the medians being below the means
are indicative of non-normal, positively skewed data structures in
which a small number of large values exert disproportionate weight on
the means, as further indicated by the extreme ranges. As seen in Table
18, there are also differences between the means and the medians across
the two sample-groups.
Having valid data on regional center sales revenue, DHS turns to
the next income source, administrative fees charged to investors. To
conduct this module of the assessment, DHS queried internal EB-5 data
repositories to obtain a figure for the number of investors for the
regional centers acquired in the above module. A proxy for the number
of investors is developed as the number of Form I-526 filings submitted
under the purview of the regional center.\75\ Key statistics applicable
to investors are provided in Table 18.
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\75\ There is a caveat to relying on the number of Form I-526
approvals as a proxy for regional center investors. Some individual
investors may file more than one Form I-526, which could arise when
an initial investment filing is denied for some reason or is not
undertaken and a new investment under the regional center is
promulgated. DHS does not know if the regional center would collect
an additional administrative fee under this scenario, so it is
possible that the basing such fee revenue on the number of investor
petitions under their purview may overstate this revenue.
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[[Page 61978]]
[GRAPHIC] [TIFF OMITTED] TR30SE26.038
As was the case with regional center sales revenue, the substantial
differences between the means and medians, as well as the extreme
range, demonstrate that the number of investors per regional center is
also a non-normal distribution that is positively skewed.
DHS multiplied the number of investors by the reduced $80,000 fee
to capture an estimate of total administrative fees by regional
center.\76\ DHS next added this figure to sales revenue found in the
subscription-based data. In addition, it cannot be ruled out that
regional centers pass the Integrity Fund fees onto the investors as
well. For regional centers with 20 or fewer total investors, DHS
included the $10,000 fee and for those with more than 20 total
investors, a $20,000 fee was added. By combining these components, DHS
was able to make a revenue estimate for the sample of regional centers.
Of the full sample, it is determined that 48.5 percent pay the $10,000
fee and that 51.5 percent pay $20,000, which based on the annual
population of 640 (at the time the analysis was conducted), would be
310 and 330 regional centers, in order. The breakdown could be slightly
different, as the number of investors is based on the Form I-526
submissions under the purview of the regional center, as DHS did not
calculate the total based on the adjustment applicable to Form I-829
filings associated with the regional center discussed in the preamble.
Given the data constraints discussed thus far, for robustness we will
assess the entities' small entity status along three different
methodological approaches. While DHS has the listed NAICS codes for the
198 classifiable entities, DHS extensively reviewed various NAICS codes
and determined that the 6-digit, detailed industry NAICS code 522310,
Mortgage and Nonmortgage Loan Brokers, defined as an ``industry [that]
comprises establishments primarily engaged in arranging loans by
bringing borrowers and lenders together on a commission or fee basis,''
is an appropriate NAICS code under which regional centers operate.\77\
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\76\ DHS notes that a small portion (1.36 percent) of RC
investments were made at the standard investment amount of $1.05
million. Therefore, based on a standard 10 percent administrative
fee, $10.8 million can be thought of as the maximum amount by which
our ensuing estimates of RC income are understated. This discrepancy
alone would not likely change the ensuing small entity
determination. This maximum amount would be allocated along some
type of distribution to all RCs that actively invested between FY
2016 through FY 2021 and then extrapolated to our small pool of RCs.
If Some RCs had multiple investments in non-TEA areas (which is
generally very rare) then it is possible that some individual RCs
may have their total income understated.
\77\ Where NAICs codes for regional centers were provided in the
data, some were different than 522310, but we believe that this
singular code is appropriate. While the regional center loans apply
to different types of projects under different industries, as a
general matter the regional center itself is not involved in those
activities and is responsible for arranging and structuring the
loans for the parties involved. The description can be found at:
<a href="https://www.census.gov/naics/">https://www.census.gov/naics/</a>.
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By this DHS means that while the NAICS code provided in the data
often applies to the types of downstream projects that the regional
centers gear loans toward, the regional center is usually not involved
directly in those activities and is rather involved in bundling the
investors' funds into loans. The year 2022 SBA size standard for the
NAICS category chosen is based on revenue of $15.0 million.\78\ Of the
actual NAICS codes provided for classifiable industries, half accrued
to several 6-digit codes under the 3-digit subsector 523, ``Securities,
Commodity Contracts, and Other Financial Investments and Related
Activities.'' The data providers describe these entities as
``investment services'' in the ``business description'' tab and all the
individual industries in NAICS subsector 523 ensconce a size standard
of $47.0 million. The difference between the size standards ($15.0
million and $47.0 million) is large, and therefore for robustness we
will evaluate the full sample of entities under each of the respective
amounts. DHS also evaluates the restricted sample based on the actual
NAICS code listed in the data. The results are presented in Table 19.
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\78\ SBA size standards effective: March 17, 2023, located at
SBA, ``Table of size standards,'' <a href="https://www.sba.gov/document/support-table-size-standards">https://www.sba.gov/document/support-table-size-standards</a> (last updated Dec. 26, 2024).
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[[Page 61979]]
[GRAPHIC] [TIFF OMITTED] TR30SE26.039
As can be seen from Table 19 the median and means for the
restricted sample-group are smaller than that for the full sample-
group. As would be expected, the percentage of regional centers that
are small is larger at the higher size standard of $47 million under
general investment services. However, still the large majority is small
at the lower size standard. Based on these data, DHS can determine that
a majority--at a minimum, 87.1 percent--of EB-5 regional centers are
small entities in the context of the RFA.\79\
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\79\ In the 2022/2023 fee rule, USCIS could not determine at the
time if RCs were large or small. The different determination in this
IRFA (based on the data and analysis and considering the caveat
noted above) is driven by two factors. First and foremost, when the
FY 2022/2023 fee rule analysis was conducted, very few regional
centers were found in the databases utilized to assess income (which
was also the case going back to the FY 2020 EB-5 Modernization rule,
at 84 FR 35750 (July 24, 2019)). In the current databases there are
many more regional centers listed and there is more data on the ones
that are listed. Second, USCIS economists reviewed an internal
USCIS-IPO database that captures more data on regional centers and
affiliated businesses/activities. This database provided more data
and information to analyze for impacts, enabled better searches and
matching, and allowed us to root out both false positives and false
negatives. The resulting analysis is thus more robust.
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There are two important caveats to the determination made above;
however, which taken together could have a net effect of reducing or
increasing the number and percentage of regional centers that are small
entities. As was noted earlier, this determination did not consider
income accruing to interest income on loans or end-user derived profit
that regional centers could collect, as DHS does not have sufficient
data to support an analysis concerning such income. Such loan
differential or profit income could be substantial and could reduce the
true small entity share. But a limitation of this analysis that could
have a countervailing effect owes to the timing of investments and
administrative fees. In practice the administrative fees need not be
collected in one year, as investments and fees could be collected over
multiple years. However, DHS abridged all the regional center income to
one year. It would be extremely difficult given the data structures we
queried for this analysis to attempt to incorporate a time dimension to
the income stream as it pertains to administrative fees. DHS is unable
to conduct a distributional analysis of the potential impacts to small
entities of regional centers. Specifically, for the set of 173-found
small entities with matched revenue data, it is conceptually possible
to divide into the income for each entity the impacts from the rule, to
derive a percentage of income the impact could embody. DHS estimates
that a seven percent rate of discount, the impacts that could accrue to
EB-5 entities (i.e., filing fees and increases in form time burdens)
could be about $3 million annually.
In practice, the costs would be higher, but DHS cannot estimate
costs. However, we have no way of distributing the quantified costs
across regional centers and therefore cannot determine how they will be
impacted. As it relates to regional centers, the fee changes applicable
to the Form I-956 (initial and amendment) could be divided against
entity income--although this would rest on the tenuous assumption that
the initial and amendment filing were in the same year. However, this
would constitute only a partial impact because DHS does not know how
activity related to the other forms applicable to regional center
activity would impact the business entity. The other forms would be
filed by individuals, and we do not know if some of the impacts would
be borne by the regional center, transferred to them, or passed through
to other entities. As a result, DHS cannot determine what the impact to
small entity regional centers would be.
ii. Other EB-5 Businesses
For nonregional center businesses involved in investment activity,
DHS employed out of necessity an unconventional, multi-step approach to
[[Page 61980]]
the small entity analysis. First, DHS was able to obtain about 5,000
unique NCE names and about 3,000 JCE names that were approved between
FY 2018 through FY 2022 from the internal EB-5 program data and
tracking databases. These entities were pooled and randomly scrambled
to source and to run searches in the subscription-based, open-source
business information providers on 400 of them, to attempt to satisfy a
95-percent level of confidence.\80\ The searches yielded only 111
results that could reasonably be validated as matches. One of the
challenges is that it can be difficult to match syntax in the entity
names between DHS records and that in the other sources. The data
providers relied upon match queries to results with close-fitting
precision, but because there can be minor syntax differences in the
names of the businesses in these providers and DHS record systems,
there is a strong likelihood a match would not result.\81\
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\80\ The annual average for NCEs was 5,672 (Table 3). NCEs do
not map one-to-one to JCEs, but since there are at least as many of
the latter as the former, we consider the population to be 11,344,
for which the sample size required to satisfy a confidence level of
95 percent is 372.
\81\ Of course, the converse--false positives--can occur as
well, such as in a case where the provider matches a named entity to
a DHS-recorded entity when in fact the true name is slightly
different.
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In addition to the low match-rate, two additional challenges were
encountered. First, DHS faced the same issue as we did for regional
centers; over one-third of the entities (42, or 37.8 percent) were non-
classifiable and therefore incompatible to evaluate against an SBA size
standard for status. Second, of the classifiable businesses, almost
one-fifth (13, or 18.8 percent) were missing either or both of a NAICS
code or a revenue figure. These constraints rendered the sample size
down to a mere 56 entities.
Given the challenges elucidated above, DHS employed an
unconventional second-step approach. DHS ran queries against
``variations'' of the term ``EB5'' separately, which yielded 885
returns. We engaged a filtering process that first removed records with
missing data (either or both of sales revenue or NAICS codes) and
removed non-classifiable establishments. DHS then backed out likely
regional centers first by culling any results that contained the
conjoined terms ``regional'' and ``center.'' DHS next bolstered this
filtering process by further eliminating any regional center names
either captured in our sample of regional centers, from that above
module of this RFA, or that were otherwise approved in the past but are
not currently active. Finally, DHS manually appraised each remaining
entity and removed those that reasonably appeared to be businesses not
directly involved with program investment activity. These ancillary
activities would primarily ensconce law firms, business advisories, or
analytical consultancies that provide services to program businesses,
but are themselves assumed to not be directly involved in the
investment activity of the program. The filtering schema is summarized
in Table 20, which shows the stepwise method. By adding the two
subtotals shown, we obtain a viable sample of 489, which is more than
sufficient to satisfy a confidence level of 95 percent.
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\82\ The searches included the variations: ``,EB5'' ``EB5.''
[GRAPHIC] [TIFF OMITTED] TR30SE26.040
[[Page 61981]]
As was mentioned above, the JCEs and NCEs were pooled in the first-
step query, and for the 433 additional entities resulting from the
second-step query, we assume that most or all of them are JCEs and
NCEs, though DHS cannot distinguish which are specifically NCEs and
which are JCEs. It is ultimately unimportant to distinguish them,
because, unlike the approach to regional centers in which we relied on
several evaluation methods--including imputing a NAICS codes based
(twice) on the single industry description we believe best fits--for
the non-regional center businesses we based the NAICS codes solely on a
single trial benchmarked to the reported NAICS code. The results of the
analysis are captured in Table 21.
[GRAPHIC] [TIFF OMITTED] TR30SE26.041
While there is an extreme range for the income, only 1 entity (the
maximum) exceeded the applicable SBA size standard, which essentially
means that 100 percent are small. However, as was the case with
regional centers, we do not know if the income applicable to these
businesses is limited to the reported sales revenue. If they receive
some income from lending activity, or some other form of return in
profits, the results could be quite different as potentially not all
would be small entities.
DHS is unable to conduct a distributional analysis of the potential
impacts to small entities. Specifically, for the set of 488 small
entities with matched revenue data, it is conceptual to divide into the
income for each. These gross impacts constitute transfers and costs. As
it relates to the businesses, the fee changes applicable to the forms
would accrue to individuals filing the petitions. DHS cannot say if and
how these impacts would impact the related businesses involved and
hence cannot determine what the impact to small entities would be.
iii. Concluding Remarks
The IRFA that DHS certified to support the proposed rule, and the
FRFA that DHS prepared for this final action, suggests that the
majority--at least 87 percent of regional centers and essentially all
other directly involved business entities (which to the best of our
assessment would comprise NCEs and JCEs) involved in EB-5 program
investment activity--could be small entities. However, it is emphasized
that this determination is made on incomplete information, as
sufficient data are not available on certain types of income that could
accrue to such entities. To provide some context to this caveat, DHS
evaluated 1,402 EB-5 projects in which an investment was conducted
through a JCE between FY 2018 through FY 2022, for which viable data
could be extracted on the amount of capital invested. The median,
average, and maximum amount of program-specific capital was $7.0
million, $67.2 million, and $11,070.0 million, in order. A little less
than a quarter (22.2 percent) blended nonprogram capital. For the
blended capital projects, the figures, in order again, were $52.2
million, $327.5 million, and $12,585.7 million. From the size of these
figures alone, it is reasonable to conjecture that if even a small
portion of the loan amount or invested capital is renumerated as
residual income, the number and share of entities that are small would
be lower than that found in our analysis. For example, the large
financial services and advisory company, Deloitte, found that the
general average rate of return on investments in 2021 was about 6.1
percent.\83\ Applied to the average and maximum blended capital
investments above, the return could be between $6.5 million and $767
million. If some, or all, of this potential return were captured by
regional centers or other businesses, the share that would be small
would almost certainly stand to be lower.
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\83\ See Deloitte, ``2021 Study of Economic Assumptions,'' pp.
8-9 (2021), <a href="https://www2.deloitte.com/content/dam/Deloitte/us/Documents/human-capital/us-2021-study-of-economic-assumptions.pdf">https://www2.deloitte.com/content/dam/Deloitte/us/Documents/human-capital/us-2021-study-of-economic-assumptions.pdf</a>.
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A second caveat to the determinations made in this FRFA is that DHS
relied on alternative methodologies. As such, the findings are based on
samples that are only partially random. The reason, it is recalled, is
that the randomized procedures did not yield sufficient sample sizes,
and while there is no reason to assume that there is any reporting or
selection bias in the nonrandom-sampled portions, it cannot be
completely ruled out either. As described in the associated economic
analysis, the impacts of the fee changes would accrue to transfers from
requestors to DHS. The potential penalties associated with the
Integrity Fund fees, which are not estimated, would be accounted for as
costs due to the EB-5 Reform Act. As was noted in Section VI.B.2.C.i of
this small entity analys
[…truncated; see source link]Indexed from Federal Register on September 30, 2026.
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